Health Services Union & Australian Education Union
[2025] FWCFB 131
•1 JULY 2025
| [2025] FWCFB 131 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.242 - Application for the FWC's approval of a supported bargaining authorisation
Health Services Union & Australian Education Union
(B2023/1235)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 1 JULY 2025 |
Application for a supported bargaining authorisation - Disability services
This is an application for a supported bargaining authorisation made by the Australian Education Union (AEU) and the Health Services Union (Branch No. 2 Victoria trading as the Health and Community Services Union (HACSU) (together the Applicants) pursuant to s.242(1) of the Fair Work Act 2009 (Cth) (the FW Act).
The authorisation is sought in respect of bargaining for a proposed multi-enterprise agreement (the Proposed Agreement) covering each of the following 14 employers (the Respondents) and their employees who perform disability work in Victoria (not including employees of the employers whose employment is covered by the Supported Employment Services Award 2020):
a.Amicus Community Services Ltd (Amicus)
b.ASTERIA Services Inc (ASTERIA)
c.Aurora Support Services Inc (Aurora)
d.Community Accessability Inc (Community Accessability)
e.Dame Pattie Menzies Centre Inc, trading as Menzies Support Services (Menzies)
f.Distinctive Options and Noweyung Ltd
g.George Gray Centre Inc (George Gray)
h.Life Skills Victoria Inc (Life Skills)
Mambourin Enterprises Ltd (Mambourin)
j.McCallum Disability Services Inc (McCallum)
k.Milparinka Adult Training Unit Inc trading as Milparinka Disability Services (Milparinka)
l.Mirridong Services Inc (Mirridong)
m.Windarring Limited (Windarring)
Each of the Respondents opposes the making of the authorisation.
The Respondents are national system employers for the purposes of the FW Act who are engaged in the disability sector in Victoria.
Each of the Respondents employ one or more employees who perform work within the coverage of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) and who are members of and are represented by the AEU or HACSU.
For the reasons set out below, we have decided to grant the application in respect of some, but not all of the Respondents, and make the authorisation.
The hearing
The matter was initially listed for directions on 22 November 2023. The Applicants requested an extended timetable for the filing of material which was accommodated by the Commission. The Applicants filed their material on 2 February 2024, and the Respondents filed their material on 15 March 2024. The Applicants filed material in reply on 2 April 2024, and the matter was listed for further directions on 4 April 2024.
Because this is the first contested application for a supported bargaining authorisation, we invited the Australian Government, peak employer organisations and the Australian Council of Trade Unions (ACTU) to make submissions in the matter. The Australian Industry Group (Ai Group) and the ACTU accepted this invitation and were granted leave to make written and oral submissions in the proceedings. National Disability Services (NDS), a national peak body for disability service organisations, also filed written submissions in the proceedings.
The application initially sought to cover 19 employers. On 23 February 2024, the Applicants sought leave to amend the application to remove five of the Respondents. The application to amend was not opposed by any of the Respondents. On 12 March 2024, the application to amend was granted by Deputy President Wright.
At the directions hearing on 4 April 2024, the Applicants requested that the matter be listed for a half day conference in Melbourne to work through some of the issues that had been raised by the Respondents with the view to avoiding a lengthy hearing and the associated cost and resources. A number of the Respondents consented to participating in a conference while others were opposed on the grounds that they did not believe that the issues between the parties were likely to be resolved, based on the material filed.
Given the divergence of views in relation to the proposed conference and the hearing, directions were made requiring the parties to have direct discussions with the view to identifying agreed facts and potentially reducing the number of witnesses required for cross examination and other matters. The Applicants were required to report back by email the outcome of those discussions in May 2024 and the matter was listed for conference in Melbourne before Deputy President Wright on 24 June 2024. Following the conference, the parties requested an opportunity to file further evidence in relation to the ‘common interest’ criteria and that the matter be listed for hearing in November 2024.
The Respondents filed supplementary written submissions in relation to the application of section 243(1)(b)(ii) of the FW Act on 30 August 2024 and the Applicants filed their responses on 4 October 2024.
The matter was listed for hearing on 11 and 12 November 2024. We granted the parties permission to be legally represented at the hearing pursuant to s.596 of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently, having regard to the complexity of the matter.
The following witnesses gave evidence on behalf of the Applicants:
1. Ms Elaine Gillespie, Vice President (TAFE and Adult Provision Sector) of the AEU, Victorian Branch
2. Mr Justin Mullaly, Branch Deputy President of the AEU Victorian Branch
3. Ms Angela Carter, Disability Policy Officer, HACSU
The following witnesses gave evidence on behalf of the Respondents.
1. Ms Katrina Ray, Head of People and Culture, Amicus Community Services Ltd
2. Ms Annie Constable, Chief Executive Officer, ASTERIA Services Inc
3. Ms Jacinta Taylor, Executive Director, Aurora Support Services
4. Mr Rick Lawford, Chief Executive Officer, Community Accessability Inc
5. Ms Sara Murray, Acting CEO/Operations Manager, Dame Pattie Menzies Centre Inc, trading as Menzies Support Services
6. Mr Ernie Metcalf, Chief Executive Officer, Distinctive Options, and Acting Chief Executive Officer, Noweyung Ltd
7. Mr Peter Green, Chief Executive Officer, George Grey Centre
8. Ms Carole Broxham, Chief Executive Officer, Life Skills Victoria
9. Ms Danielle-Carey Munro, Chief Executive Officer, Mambourin Enterprises Limited
10. Ms Lauren Baker, Executive Manager People and Culture. McCallum Disability Services Incorporated.
11. Ms Doreen Milne, Chief Executive Officer, Mirridong Services Inc
12. Mr Simon Hill, Chief Operating Officer, Windarring Limited
The evidence of all witnesses was admitted without objection. Only Ms Gillespie and Ms Carter were required for cross-examination at the hearing.
Background to the Application
Ms Gillespie provided evidence on behalf of the AEU. Under the Rules of the AEU, Ms Gillespie has responsibility for the AEU disability sector in Victoria including collective bargaining, advocating for members’ professional interests and for research and campaigning.[1]
Ms Gillespie explained that most of the AEU’s disability sector members are employed as ‘Instructors’ in ‘Day Services’ and that this work has been regulated under federal industrial laws since 1993. Before this, industrial conditions were set by determinations or awards made pursuant to the Victorian industrial relations system laws.[2]
Ms Gillespie gave evidence that person-centred planning for individual needs and support is a key feature of the work of Instructors. This involves planning programs of instruction in accordance with the interests and capabilities of persons living with disability. Instructors liaise with carers and parents; maintain records; plan programs; and monitor and assess progress. Instructors are also employed to provide services called ‘Community Access’. Instructors who provide community access services conduct programs for adult persons living with disability to develop their skills, educate them and enrich their experiences. Such programs include a wide range of living skills (food preparation, purchasing, banking, and independent travelling), pre-employment training and general interest topics. The programs aim to integrate persons living with disability into the community to the greatest extent possible. Programs may be conducted at a centre or in the wider community (that is, in outreach programs). [3]
In 1993, the Australian Industrial Relations Commission (AIRC) made the Disability Services Award (Victoria) 1993, which was reviewed and amended by the AIRC in 1999 and became the Disability Services Award (Victoria) 1999 (Pre-modern Award). The Pre-modern Award covered, and applied to, Instructors.[4] The conditions of employment of Community Access Employees and Day Services Employees have also been governed by agreements certified, or approved by, the AIRC and successor bodies.[5]
In 1999, the AEU and a large number of employers operating day services entered into a certified agreement known as the Disability Services Victoria (Part 1) Enterprise Agreement, 1999 (MECA).[6] In the 2000s, and prior to the commencement of the FW Act, a number of employers covered by the MECA entered into separate certified agreements and collective agreements, which covered and applied to Instructors. These included certified agreements and collective agreements entered into by some of the Respondents (now known as ‘zombie agreements’).[7] Some of these agreements cover residential services that employ disability sector workers who are within the coverage of HACSU. Ms Carter explained that HACSU’s members work in disability services across Victoria in both residential, in-home support, community participation and day services settings.[8]
With effect from 1 January 2010, Fair Work Australia (FWA) made the SCHADS Award, which is a modern award that succeeded the Pre-modern Award. The SCHADS Award has been varied over the years and covers disability sector workers, including Community Access Employees and Day Services Employees.[9]
On 22 June 2012, FWA made the Social, Community and Disability Services Industry Equal Remuneration Order 2012 (ERO) under Part 2–7 of the FW Act. The ERO applies to employees classified under Schedule B of the SCHADS Award referred to as ‘social and community services employees’, which includes Community Access Employees and Day Services Employees.[10]
The ERO sets the wage rates of disability support workers. The wage increases were funded by the Commonwealth under, and in accordance with, the Social and Community Services Pay Equity Special Account Act 2012 (Cth). The AEU considered that the terms and conditions set under the Workplace Relations Act 1996 (Cth) were better than the SCHADS Award and, given the financial constraints of employers in the disability sector, did not consider that there were prospects of obtaining better terms and conditions of employment for its members in the disability sector.[11]
Ms Carter explained that in Victoria, disability providers previously received ‘block funding’ from the Victorian Government to deliver disability services that gave disability services discretion as to how they allocated those funds. The introduction of the NDIS changed the delivery of funding to service providers from block funding to individualised funding. Under the NDIS, funding is provided to a person with a disability on an itemised basis similar to Australia’s Medicare system.[12]
The National Disability Insurance Scheme Disability Support Worker Cost Model (NDIS DSW Cost Model) caps the cost of disability support workers to the SCHADS Award minimum pay rates and does not fund all conditions under the SCHADS Award.[13]
Ms Carter said that the NDIS DSW Cost Model has greatly impacted bargaining in the disability sector to the extent that bargaining has almost completely shut down in the sector. During bargaining discussions, employers are reporting to HACSU that they cannot pay disability support workers more than the ERO minimum rates of pay because they are only funded for what NDIS pay, and this is aligned to the ERO.[14]
Ms Carter explained that in about 2017, the AEU and HACSU were approached by Jobs Australia, an employer organisation with members who provided disability services in Victoria. Jobs Australia reported that their members were operating on zombie agreements that contained above award terms and conditions that these employers were struggling to afford as a result of the NDIS DSW Cost Model. These discussions resulted in the parties commencing a bargaining process with the assistance of the Commission through what was then called the New Approaches Program (now called the Collaborative Approaches Program).[15]
In 2019, the Commission approved the Victorian Disability Services (NGO) Agreement 2019 (2019 VDSEA) which was succeeded by the Victorian Disability Services (NGO) Agreement 2023 (2023 VDSEA).[16]
A number of key entitlements that were preserved under the terms of the 2019 VDSEA included:
a. Six weeks’ annual leave for currently employed staff (Clause 27.2);
b. 15 days’ personal leave for all staff (Clause 28.2 and 28.3);
c. Parental leave for currently employed staff (Clause 34.3); and
d. The wages rates were set in accordance with the ERO and existing agreement classification structures (Clause 16 and Schedule C.3).[17]
The terms of the 2019 VDSEA were essentially rolled-over into the 2023 VDSEA, with around 12 low-cost or no-cost items agreed to. Ms Gillespie said that the work that is covered by the 2023 VDSEA is broadly the same, if not identical to, the work that would be performed by employees of the Respondents under the Proposed Agreement.[18]
Ms Gillespie said that the parties to the 2019 VDSEA and the 2023 VDSEA, which included the AEU and HACSU, availed themselves of the auspices of the Commission’s ‘New Approaches’ program. Bargaining has been facilitated by Mr Julius Roe, a former member of the Commission. A fundamental interest that has been recognised by the parties is the vital importance of securing funding for the work of the VDSEA Employers. This interest is acknowledged in clause 3.1(g) of the 2023 VDSEA, which provides that:
The parties are committed to the Bargaining Charter which was developed in the lead up to this Agreement and is contained at Schedule H of this Agreement. The parties will jointly and separately pursue funding and regulatory changes necessary to support the principles as set out in the Bargaining Charter.[19]
The Bargaining Charter provides as follows:
Principle 1: Commitment to Choice and Control
• We believe people living with a disability have the choice and control to make their own decisions about the supports they receive.
• We believe that it is vital that those who provide support are registered providers and skilled workers in order to ensure high quality outcomes for people living with a disability.
Principle 2: Commitment to Multi-Employer Bargaining
We agree that a Multi-Employer Agreement enables us to effectively collaborate to ensure that the following objectives of quality disability support services are promoted:
o quality care
o responsiveness to client needs
o best practice working conditions
o job security, and
o a well-trained professional workforce.
Principle 3: Protection of Over-Award Entitlements
• The current MEA contains better terms and conditions for workers than the SCHADS
Award.• We will seek to continue to include over-Award entitlements as we recognise this is important for the retention of the workforce who deliver quality care.
Principle 4: Maximise Secure Work and Operational Flexibility
• We will achieve this by enhancing the consistency, quality and flexibility of service
delivery to clients.
• We support the recruitment and retention of a committed and professional workforce.
• We will include appropriate clauses regulating working hours and conditions to support these principles.
• We are committed to facilitating opportunities for, and the attractiveness of, longer term roles with adequate hours with a single employer, thereby reducing the need for workers to work for numerous employers, as sole traders, or seek work in other sectors and maximising the continuity of supports for participants.Principle 5: Disability Workforce Attraction and Retention
• Improved wages are required to better recognise professional disability work to ensure high quality support and we are seeking appropriate funding to support this.
• We are committed to enhancing the professional status of disability support workers and the disability sector, including through registration with the Victorian Disability Workers Commission (VDWC) and access to adequate training.
• We are committed to improving attraction and retention of disability support workers in order to provide high quality best practice supports.Principle 6: Best Practice OHS Standards
• We are committed to best practice occupational health and safety standards, including:
o reducing the risks of occupational violence and
o reducing the risks of stress related illness.
Principle 7: Consultation and Collaboration
• We are committed to facilitating ongoing consultation and collaboration between
employers, unions and the workforce.Principle 8: Funding Support
• We will seek to involve Government and the NDIA to achieve a funding and regulatory environment to meet and promote these agreed Principles.
• We support workers being paid, and employers being appropriately funded, for all work including planning, professional development and training, administration time, leadership and quality assurance.
• We support an equal focus on funding for individualised and shared arrangements to provide quality and responsive services.
• The full achievement of our objectives will require a cooperate effort and appropriate funding support to create a more supportive funding and regulatory environment.[20]
The nominal expiry date of the 2023 VDSEA was 30 June 2024. The AEU and HACSU intend to bargain with the employers covered by the 2023 VDSEA in accordance with the principles set out in the Bargaining Charter. They will be assisted by Mr Roe.[21]
In addition to the 2023 VDSEA, the AEU has negotiated a small number of single-enterprise agreements for Instructors employed by Victorian employers. The rates of pay in these enterprise agreements are set in accordance with, or marginally above, the SCHADS Award.[22]
Ms Carter explained that the 2023 VDSEA dealt with some of the complex above Award zombie agreement entitlements through the grandfathering of those provisions for certain workers which has enabled the employers who are parties to the VDSEA to continue running viable disability services businesses.[23]
Ms Carter explained that throughout the course of bargaining for the VDSEA from 2017 to the present, there has been three major bargaining representatives with some additional bargaining representatives. However, the majority of employers have been represented by one major bargaining representative with an ‘employer bargaining committee’ who also attends bargaining. Ms Carter said that the bargaining process has been manageable and has worked well. The parties have developed a good working relationship and continue to work together in an effort to develop solutions to the issues presented by the NDIS DSW Cost Model.[24]
Ms Carter explained that in July and August 2023, HACSU wrote to the majority of the Respondents as most of them were covered by zombie agreements that would expire on 6 December 2023 unless an application was made to extend those agreements. According to Ms Carter, the zombie agreements contain terms and conditions which are more favourable than the SCHADS Award including 21 days personal leave, six weeks annual leave, shift penalty provisions that apply on weekends, first aid allowance and make up pay. Ms Carter said that HACSU wrote to the Respondents to ascertain whether they were willing to bargain and whether they were interested in making a joint supported bargaining application to deal with the issues presented by the NDIS DSW Cost Model which does not fund above Award conditions.[25]
Ms Carter said that the Respondents either did not respond, advised that they were not interested in bargaining or did not provide a firm commitment to explore bargaining further.[26]
Statutory framework
The object of the FW Act as set out in s.3 is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by a number of measures including at ss.3(a) and (f):
(a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
…
(f) achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action
Section 3(a) was amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) to insert the words ‘promote job security and gender equality’.
The FW Act provides for the making, and approval by the Commission, of enterprise agreements in Part 2-4. Section 171 sets out the objects of the Part as follows:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.
The SJBP Act amended the FW Act to make provision for bargaining representatives, including employee organisations, to make an application for a supported bargaining authorisation in relation to a proposed multi-enterprise agreement. This was to replace the previous ‘low paid bargaining stream.’
These amendments were first considered by the Full Bench in Application by UWU, AEU and IEU.[27] In that case, the Full Bench observed that the low-paid bargaining scheme essentially failed to achieve its legislative purpose, which included to assist and encourage low paid employees and their employers, who have not historically had the benefits of collective bargaining, to make an enterprise agreement that meets their needs. Only five applications for low-paid authorisations were made in the almost 14 years that the scheme was in place, only one of these was successful (the Aged Care decision) and the successful application did not lead to the making of a multi enterprise agreement.[28]
The effect of a supported bargaining authorisation as described in the ‘guide’ to Part 2-4 in s.169 is that:
… specified employers are subject to certain rules that would not otherwise apply (for example, bargaining orders that would not usually be available for multi-enterprise agreements will be available). It also permits the FWC to assist the bargaining representatives for such agreements.
The relevant legislative provisions in relation to supported bargaining authorisations are found in ss.241-243A of the FW Act.
Section 241 sets out the objects of Division 9 of the FW Act as follows:
241 Objects of this Division
The objects of this Division are:
(a) to assist and encourage employees and their employers who require support to bargain, and to make an enterprise agreement that meets their needs; and
(c) to address constraints on the ability of those employees and their employers to bargain at the enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or previous bargaining experience; and
(d) to enable the FWC to provide assistance to those employees and their employers to facilitate bargaining for enterprise agreements.
Section 242 sets out who may apply for a supported bargaining authorisation and what the application must specify. It provides:
242 Supported bargaining authorisations
(1) The following persons may apply to the FWC for an authorisation (a supported bargaining authorisation ) under section 243 in relation to a proposed multi - enterprise agreement:
(a) a bargaining representative for the agreement;
(b) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.
Note: The effect of a supported bargaining authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to the availability of bargaining orders, see subsection 229(2)).
(2) The application must specify:
(a) the employers that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
(3) An application under this section must not be made in relation to a proposed greenfields agreement.
Section 243 sets out the circumstances in which the Commission is required to make a supported bargaining authorisation, provides what the authorisation must specify and states when the authorisation come into operation. It provides:
243 When the FWC must make a supported bargaining authorisation
Supported bargaining authorisation—main case
(1) The FWC must make a supported bargaining authorisation in relation to a proposed multi‑enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that it is appropriate for the employers and employees (which may be some or all of the employers or employees specified in the application) that will be covered by the agreement to bargain together, having regard to:
(i) the prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector); and
(ii) whether the employers have clearly identifiable common interests; and
(iii) whether the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process; and(iv) any other matters the FWC considers appropriate; and
(c) the FWC is satisfied that at least some of the employees who will be covered by the agreement are represented by an employee organisation.
Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).
Common interests
(2) For the purposes of subparagraph (1)(b)(ii), examples of common interests that employers may have include the following:
(a) a geographical location;
(b) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises;
(c) being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory.
Supported bargaining authorisation—declared industry etc.
(2A) The FWC must also make a supported bargaining authorisation in relation to a proposed multi‑enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the employees specified in the application are employees in an industry, occupation or sector declared by the Minister under subsection (2B).
Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).
(2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241.
What authorisation must specify etc.
(3) The authorisation must specify:
(a) the employers that will be covered by the agreement; and
(b) the employees who will be covered by the agreement; and
(c) any other matter prescribed by the procedural rules.
Operation of authorisation
(4) The authorisation comes into operation on the day on which it is made.
Section 243A sets out the restrictions on making supported bargaining authorisations as follows:
243A Restrictions on making supported bargaining authorisations
Relationship between this section and section 243
(1A) Section 243 has effect subject to this section.
Employees covered by single‑enterprise agreement that has not passed nominal expiry date
(1) The FWC must not make a supported bargaining authorisation specifying an employee who is covered by a single‑enterprise agreement that has not passed its nominal expiry date.
(2) A supported bargaining authorisation has no effect to the extent that it specifies an employee who is covered by a single‑enterprise agreement that has not passed its nominal expiry date.
(3) However, subsections (1) and (2) do not apply if the FWC is satisfied that the employer’s main intention in making the agreement with the employees covered by it was to avoid being specified in a supported bargaining authorisation.
General building and construction work
(4) The FWC must not make a supported bargaining authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to general building and construction work.
Section 244 specifies the circumstances where the Commission must vary a supported bargaining authorisation to remove or add an employer’s name to the authorisation. It provides:
244 Variation of supported bargaining authorisations—general
Variation to remove employer
(1) An employer specified in a supported bargaining authorisation may apply to the FWC for a variation of the authorisation to remove the employer’s name from the authorisation.
(2) If an application is made under subsection (1), the FWC must vary the authorisation to remove the employer’s name if the FWC is satisfied that, because of a change in the employer’s circumstances, it is no longer appropriate for the employer to be specified in the authorisation.
Variation to add employer
(3) The following may apply to the FWC for a variation of a supported bargaining authorisation to add the name of an employer that is not specified in the authorisation:
(a) the employer;
(b) a bargaining representative of an employee who will be covered by the proposed multi‑enterprise agreement to which the authorisation relates;
(c) an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under that agreement.
(4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer’s name if the FWC is satisfied that it is in the public interest to do so, taking into account:
(a) if the employer’s employees are in an industry, occupation or sector declared by the Minister under subsection 243(2B)—the declaration; and
(b) if paragraph (a) of this subsection does not apply—the matters set out in paragraph 243(1)(b); and
(c) any other matters the FWC considers appropriate.
(4A) Despite subsection (4), the FWC must not vary the authorisation if subsection 243A(1) (employees covered by single‑enterprise agreement that has not passed nominal expiry date) would prevent the FWC from making a supported bargaining authorisation specifying the employees.
(5) Despite subsection (4), the FWC must not vary the authorisation if, as a result of the variation, the proposed multi‑enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work.
Section 245 provides that the Commission is taken to have varied a supported bargaining authorisation to remove an employer’s name when the employer and all of their employees who are specified in the authorisation are covered by an enterprise agreement or a workplace determination that is in operation.
Section 246 provides that the Commission may, on its own initiative, provide to the bargaining representatives for the agreement such assistance that the Commission considers appropriate to facilitate bargaining for the agreement and that the Commission could provide if it were dealing with a dispute. The assistance may include directing a person who is not an employer specified in the authorisation to attend a conference if the Commission is satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made.
An important consequence of the making of a supported bargaining authorisation is specified in s.172(7) as follows:
Requirement for employer specified in supported bargaining authorisation
(7) Despite any other provision of this Part, if an employer is specified in a supported bargaining authorisation that is in operation:
(a) the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a supported bargaining agreement; and
(b) the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement.
Under s.12, a multi-enterprise agreement is a ‘supported bargaining agreement’ if a supported bargaining authorisation was in operation in relation to the agreement immediately before the agreement was made. Section 182(2) sets out the circumstances in which a multi-enterprise agreement which is not a greenfields agreement is made. It provides:
If:
(a) a proposed enterprise agreement is a multi - enterprise agreement; and
(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and
(c) those employees have voted on whether or not to approve the agreement; and
(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;
the agreement is made immediately after the end of the voting process referred to in subsection 181(1).
Section 184 provides that if a multi‑enterprise agreement is made and the agreement was not approved by the employees of all of the employers that made a request under s.181(1) in relation to the agreement, a bargaining representative must, prior to applying for its approval, vary the agreement so that it is expressed to cover only each employer whose employees approved the agreement and its employees.
Approach to construction of Division 9 of Part 4-2
The Full Bench in Application by UWU, AEU and IEU observed that the principal construction consideration in relation to the provisions of Division 9 of Part 4-2 is that the scheme for supported bargaining effected by the SJBP Act represents a modification of the previous low-paid bargaining scheme, rather than a complete innovation. The objective of the supported bargaining scheme is to make it more accessible and therefore more widely used.[29]
The Full Bench explained that there has been no substantive change to the provisions in s.242 as to who may make an application for an authorisation and the content of such an application. The legislative purpose of improving accessibility and take-up is primarily achieved by the amendments to s.243 in respect of the circumstances in which the Commission is required to make an authorisation.[30]
The Full Bench identified the key changes to s.243 as including:
· The former requirement in subsection (1)(b) that the Commission be satisfied that it is ‘in the public interest to make the authorisation’ has been replaced by one that the Commission be satisfied that ‘it is appropriate for the employers and employees (which may be some or all of the employers or employees specified in the application) that will be covered by the agreement to bargain together’. This reflects a substantially lower statutory threshold for the required exercise of power. An appropriateness standard connotes that which is ‘fair and just’ or ‘suitable’ or ‘fitting’ and involves an evaluative assessment of a broader and less prescriptive nature than the previous public interest requirement.
· The consideration of ‘the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms of employment in those enterprises’ under former subsection (2)(e) has been replaced by ‘whether the employers have clearly identifiable common interests’, with examples of such common interests given in subsection (2). One of the examples, the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises, is substantially reflective of former subsection (3)(e), but the other two examples, a geographical location and being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory refer to circumstances which do not necessarily relate to commonality in the nature of the enterprises and their terms and conditions of employment. This indicates that a broader range of circumstances may be taken into account in assessing commonality of interests.[31]
In relation to whether the FW Act evinces a preference for enterprise level bargaining in favour of multi-enterprise bargaining, the Full Bench said:
We agree that the relevant parts of the objects of the FW Act in ss 3(f), 171(a) and 241(c) indicate that enterprise-level bargaining is intended to be the primary and preferred mode of agreement-making under the FW Act. We also agree that, where it is demonstrated that the employers and employees covered by a proposed supported bargaining authorisation have the capacity to bargain effectively at the enterprise level, this is a matter which may be taken into account under s 243(1)(b)(iv) as weighing against satisfaction that it is appropriate for the employers and employees to bargain together. However, this consideration should not be taken so far as to transform the appropriateness standard in s 243(1)(b) into a comparative ‘more appropriate’ standard whereby the Commission must be satisfied that supported bargaining under Division 9 of Part 4-2 is more appropriate than any other mode of bargaining available under that Part. This would constitute an impermissible and erroneous alteration to the statutory test.[32]
Consideration
We have considered the submissions made by the parties and all the evidence in our determination of this matter and the conclusions we have reached. Where parties have made the same or similar submissions about a matter, we have avoided repetition when referring to these submissions where possible.
We have addressed each of the applicable requirements below.
Section 243(1) - When the FWC must make a supported bargaining authorisation
The requirements of s.243(1) which we must be satisfied of in this case are those provided in subsections (a), (b) and (c).
Section 243(1)(a) — Has an application for the authorisation been made?
The requirement for an application to have been made suggests that the application must be validly made in accordance with the applicable statutory requirements.[33] The application has been made by the AEU and HACSU, both of which are registered employee organisations for the purposes of the FW Act. The AEU and HACSU submitted that each of them is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement pursuant to s.242(1)(b).[34]
There was no dispute that HACSU has standing to make the application. However, McCallum and Mambourin both submitted that the AEU does not have standing to make the application as it is not entitled to represent the industrial interests of their respective employees who will be performing work under the Proposed Agreement.
Submissions
The AEU submitted that disability support workers are covered by Rule 5(4)(f) of the AEU’s Rules, and relevantly that they are persons who are:
(i) employed to teach and/or supervise teaching in or by registered non-residential services including day training centres, adult units…
…
(ii) employed in Victoria to teach and/or supervise teaching of people with social, physical, sensory, educational and intellectual disabilities.[35]
Mambourin submitted that its support workers are not required to have education qualifications to perform their roles, and they do not have such qualifications. As such, they do not appear to be employed to teach, for the purpose of Rule 5(4)(f) of the AEU’s Rules.[36]
McCallum submitted that the AEU has no coverage in general disability services and that it only has coverage in disability services education. This is supported by the language of the AEU rules which reference coverage as being restricted to persons ‘employed to teach and/ or supervise teaching’.[37]
McCallum submitted that it does not operate any programs in pursuit of or incidental to disability services education or teaching and the inclusion of the reference to education and teaching is an important one which denies the AEU coverage of McCallum employees.[38]
McCallum submitted that since it joined the NDIS in 2017 the nature of the process for the services it provides to participants has changed and whilst it has continued to operate under the AEU zombie agreement in terms of pay and conditions, those employees can no longer properly be described as ‘Instructors’ but are disability support workers.[39] McCallum submitted that modern centre based and community based group activities do not provide ‘instruction, teaching and/or training’ unless they are specialist education facilities which McCallum does not have and therefore McCallum’s disability support worker staff cannot be said to meet the definition of ‘Instructors’ as contemplated by the AEU.[40]
Findings
The evidence provided by Ms Gillespie is that the AEU has members who support persons with disability in ‘day services’ and ‘community services’. HACSU also have members working in day services and community services as well as residential and in home support.[41] The AEU rules appear to use language to describe its disability services coverage which may no longer be fit for purpose when referring to contemporary community-based disability services in that there is no longer a teaching requirement. Nevertheless, the purpose of the work, which is to enhance the lives of persons with disability in a community-based setting, appears to be the same, albeit involving a shift from teaching to person centred planning and support. We have doubts about whether this shift in emphasis in the delivery of community-based disability services would result in the AEU rules no longer covering employees at Mambourin and McCallum.
However, this is not a matter which we are required to determine for the purpose of the application before us. Section 242(2) simply requires the application to be made by an employee organisation that is entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement. There is no requirement that the application is made by an employee organisation that is entitled to represent the industrial interests of an employee working for each of the employers who will be covered by the agreement. It is likely that the AEU is entitled to represent the industrial instruments of at least one employee in relation to work to be performed under the agreement. For example, George Gray,[42] Distinctive Options and Noweyung[43] all operate day services amongst other services and do not dispute that the AEU and HACSU share coverage of the Respondent. However, even if this is not the case, the rules of the Health Services Union establish that it is entitled to represent the industrial interests of an employee in relation to work to be performed under the Proposed Agreement. In this regard Rule 3A(b) provides that:
The Union shall consist of an unlimited number of persons
…..
in the States of Victoria, Queensland, Tasmania and in the Australian Capital Territory, in the provision of care and training to the intellectually disabled and/or physically disabled and/or psychiatrically disabled and/or developmentally disabled and work ancillary thereto in hostels, day care centres, and homes (including dwellings) but excluding trained teachers employed as such and in the States of Victoria and Queensland and the Australian Capital Territory, teacher aides employed as such
…..
The eligibility rules go on to refer to a number of exceptions which are not relevant to the application before us. Based on the rules of the Health Services Union, we are satisfied that HACSU has standing to make the application.
The amended application meets the requirements of s.242(2) as it specifies the employers and employees covered by the Agreement. The application has not been made in relation to a proposed greenfields agreement. We are therefore satisfied that a valid application for the authorisation has been made as required by s.243(1)(a).
Section 243(1)(b) — Is it appropriate for the employers and employees that will be covered by the agreement to bargain together?
The consideration required under s.243(1)(b) requires a broad evaluative judgment to be made having regard to the matters specified in subsections (i)-(iv). A requirement to have regard to a matter means that it must be treated as a matter of significance in the decision-making process. However, no single matter in s.243(1)(b) is to be regarded as being determinative as to whether the requisite state of satisfaction is reached.[44]
The prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector): s.243(1)(b)(i)
Evidence and Submissions
AEU
The AEU submitted that commonality of pay and conditions across an industry or sector, or whether employees are paid at or close to the relevant modern award rates may support a conclusion that it is appropriate that the employers and employees bargain together. In other cases, the level or divergent nature of pay and conditions within an industry or sector may be a factor weighing against a finding of appropriateness although, no consideration would be determinative of the Commission’s conclusion.[45]
HACSU
Ms Carter said that it is difficult to provide accurate data about prevailing rates in the disability sector because data about the size and makeup of the NDIS workforce is limited due to the absence of a national census of disability support workers and limitations relating to occupational coding through the Australian and New Zealand Classification of Occupations (ANZSCO). Currently, disability support workers are predominantly captured in the Australian Bureau of Statistics (ABS) Labour Force Surveys and Census data and the ANZSCO classification of ‘Aged and Disabled Carers’ (4231).[46]
Ms Carter said that it is also difficult to obtain accurate data about the disability workforce because there is not a mandatory registration scheme or a requirement for all disability support workers to complete the NDIS Worker Orientation Modules that enables the sector to capture information about the workforce. Although it is difficult to obtain accurate data, low rates of pay prevail because the NDIS DSW Cost Model is based on the ERO rates. The most common classifications in the SCHADS Award in the disability sector are levels 2 and 3, with most disability support workers classified at level 2.[47]
HACSU submitted that there is evidence which clearly demonstrates there are prevailing low rates of pay in the disability sector. That evidence is as follows:
a.In the Disability Royal Commission Final Report (DRC Report) it is identified that the majority of the disability workforce are employed under the SCHADS Award.
b.The NDIS DSW Cost Model caps the cost of disability support workers to the SCHADS Award minimum rates of pay. Above-award rates of pay are rare in the disability sector because the disability support providers are reliant on NDIS funding and any above-award payments come at an additional cost to the disability support provider.
c.Even in circumstances where enterprise agreements exist in the sector, the rates of pay provided by those Agreements are tethered to the SCHADS Award or rarely exceed the rates of pay provided by the SCHADS Award due to the constraints of the NDIS DSW Cost Model.
d.Jobs and Skills Australia provide a summary of the most specific ABS data available, concerning both aged and disability carers based on ANZSCO classification 4231. The data identified that out of 293,500 employed as aged and/or disability carers – approximately 73% of which are women - the median earnings for full-time employees, before tax, is about $1,382.00 per week. By contrast the median earnings for full-time employees across ‘all occupations’ is about $1,593.00 per week. These statistics show that aged and disability employees are low paid, having weekly earnings that are approximately 14% below those of all employees.
e.The disability sector has been specifically identified as being a low-paid industry in which the supported bargaining scheme was intended to be utilised.[48]
HACSU submitted that the employees of the Respondents are paid at SCHADS Award rates and therefore the prima facie position is that they are deemed to receive low rates of pay.
HACSU submitted that rates in the SCHADS Award cannot be viewed as ‘relatively high’ because the role of modern awards under Australia’s industrial relations system is to provide a minimum floor or safety net of wages and conditions. Instead, the National Disability Insurance Agency (NDIA) through the NDIS DSW Cost Model has reappropriated the SCHADS Award as a ceiling on wages and conditions across the disability sector. In any event, the minimum weekly rates of pay attaching to the most common SCHADS classifications in the disability sector sit well below the average weekly ordinary time earnings for full time adults in Australia, which the ABS recently put at $1,838.60.[49]
HACSU submitted that the statutory task, which is to have regard to the ‘prevailing pay and conditions within the relevant industry or sector’, requires consideration of whether low rates of pay prevail in the industry; and whether employees in the industry are paid at or close to the relevant award rates.[50]
ACTU
The ACTU submitted that there is variation across the broader industry that includes the disability sector between wages set by modern awards, those set by collective agreements and those set by individual arrangements. In the Health care and social assistance industry, average weekly total cash earnings of full-time non-managerial employees paid at the adult rate for award reliant workers is $1,810.30, under collective agreements it is $2,062.70 and under individual arrangements it is $1,678,00 (the average being $1910.40).[51]
The ACTU submitted that the rates of pay for personal carers are lower than for the broader industry as a whole. Average weekly total cash earnings for full-time non-managerial workers in this cohort are $1,443.60 for award reliant workers, $1434.50 for those workers covered by a collective agreement and $1,371.40 for those on individual agreements (the average being $1,429.60.)[52]
For aged and disabled carers, the average weekly total cash earnings for all employees are $942.00 under awards and $986.60 under enterprise agreements (an average of $921.50). Men in this cohort have average weekly total cash earnings of $1,011.80 and women have average weekly total cash earnings of $886.70.[53]
The ACTU submitted that this information shows that:
a. Workers in the broader industry are paid at or around award wages;
b. Workers in the occupational category are paid at or around award wages, albeit at a lesser rate;
c. Workers in a more specific occupational category are paid at or around award wages, albeit at an even less rate; and
d. That women in the industry are paid less than men.[54]
ASTERIA
ASTERIA submitted that it is relevant for the Commission to take into account the wage boost that was achieved from the ERO. The ERO means that a Certificate III-qualified employee under the SCHADS Award is entitled to be paid a minimum hourly rate of $32.21. The Certificate III in Individual Support is a 6 month full time course. In contrast, the certificate III ‘classification’ across other industries is generally $26.18. Arising from the ERO therefore, a Certificate III rate of pay for a disability support worker is 23% higher than a Certificate III rate of pay in other industries, and 7% higher than the Certificate III in Aged Care.
ASTERIA submitted that the Certificate III rate of pay under the SCHADS Award is ‘relatively high’ compared to the rate of pay for equivalent qualifications and work in other industries.[55]
Community Accessability
Community Accessability submitted that following the Commission’s Equal Remuneration Case in relation to the SCHADS Award, the pay and conditions in this sector are high relative to other sectors paying at or close to modern award rates. More importantly, even if the Applicants were to make out that the prevailing rates of pay in this sector are ‘low’ (which is not conceded), this does not make joint bargaining in this case any more appropriate. Because there is no funding available for a pay increase, joint bargaining is highly unlikely to result in a pay increase. The prevailing levels of pay in the industry, therefore do not make joint bargaining any more appropriate in this case.[56]
Community Accessability submitted that the meaning of ‘low paid’ does not merely call for a comparison to the award rates, but requires comparison to pay in other sectors and to the levels within industrial instruments that employees are paid at.[57]
Community Accessability submitted that there is nothing in the statute or the surrounding context that would indicate ‘low’ is intended to focus purely on the pay relative to the legal minimums in the industry/profession. Doing so would ignore (i) the ‘levels’ under which employees are at within awards, which has previously been recognised by the Commission as a relevant factor with respect to the meaning of ‘low-paid’ in the low-paid bargaining scheme, and (ii) how the award rates in that industry compare to rates in other sectors.[58]
Community Accessability submitted that when consideration is given to these factors, there is insufficient evidence to demonstrate employees are ‘low-paid’ because the SCHADS Award rates of pay are relatively high compared to rates of pay in other awards.[59]
Community Accessability submitted that because there is no prospect of joint bargaining leading to higher rates of pay, low rates of pay do not make joint bargaining more appropriate.[60]
Life Skills, George Gray, Distinctive Options and Noweyung
Life Skills, George Gray, Distinctive Options and Noweyung submitted that disability support workers who are paid a weekly wage that includes the ERO increases are not paid ‘at or close to the award rates of pay’ as they are paid above the SCHADS Award minimum rates of pay. They submitted that even if the ERO rates of pay are found to be the minimum rates of pay under the SCHADS Award, these rates of pay cannot be characterised as a low rate of pay as the social and community services classifications Level 2 to Level 8 have been subject to significant increases (of between 23% to 45%) between 2012 to 2020 in addition to the annual wage increases arising from the Commission’s Annual Wage Review.[61]
Windarring
Windarring submitted that the Applicants should adduce evidence of the prevailing pay and conditions within the disability sector, not just the employees of the Respondents.[62] Windarring submitted that the evidence of aggregated labour force data has no probative value given that there is no certainty that the data has not been skewed towards the realities of workers in the aged care sector.[63]
Windarring submitted that the Applicants’ comparison between the weekly rates in the ERO and the all jobs average weekly earnings in Australia fails to consider the inherent differences in skill, education requirements and responsibilities across various occupations. Windarring also submitted that the median, rather than the average, is a more reliable measure of central tendency. This is supported by the meaning of low paid in the former low paid bargaining provisions of the FW Act being tethered to the median adult ordinary time earnings.[64]
Windarring submitted that the Applicants acknowledge that without an increase in NDIS funding, the prospect of any enterprise agreement increasing rates of pay within the disability sector is low which brings the purpose of the application into doubt.[65]
Windarring submitted that the assessment of whether low rates of pay prevail in each sector must be contextualised with the constraints of the NDIS pricing framework. In the absence of comparable constraints in other sectors, what might be considered low pay in a different context may not hold true within the disability sector. It is therefore inappropriate to assert that the disability sector is low paid in comparison to other sectors whose funding is not highly dictated by substantial government funding models.[66] Windarring submitted that it is arguable that the sector is well paid when employees are paid the maximum or close to the maximum amount that employers can afford to pay.[67]
Mambourin
Mambourin submitted that the weekly rate for a disability support worker with around one year of experience ($1,223.85) is favourable compared to pay rates for similar work in other streams or awards. Accordingly, it is not clear that the rates of pay in the disability sector should be considered to be low.[68]
Mambourin submitted that the Commission will need to consider whether the pay and conditions across the Respondents are largely consistent or divergent for the purpose of determining whether it is appropriate for the parties to bargain together. Mambourin notes that the AEU appears to concede that divergent pay and conditions within an industry or sector would be a factor weighing against a finding of appropriateness.[69]
Mambourin submitted that it was previously covered by the Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (Mambourin Agreement) which was terminated by the Commission effective 6 November 2020. Mambourin currently employs all of the employees who would be covered by the proposed authorisation (excluding warehouse staff and supported employment) either in accordance with the SCHADS Award, or on permanent employment agreements with a fixed annual salary. Mambourin continues to provide for long service leave accrual at the rate of 13 weeks of leave after 10 years for all staff who were employed by Mambourin prior to 1 January 2020, and who were previously covered by the Mambourin Agreement. Attempts to negotiate a new enterprise agreement have so far been unsuccessful, however Mambourin intends to continue attempting to negotiate an agreement with its staff and the AEU (subject to the possible application of section 172(7) of the Act). Mambourin’s current pay rates for the employees who would be covered by the proposed authorisation (excluding warehouse staff and supported employment services, and with the exception of staff on annual salaries) are marginally higher than the SCHADS Award rates. 34 of Mambourin’s staff who may be covered by the proposed authorisation (depending on the breadth of the term ‘employed in disability support work’ used in the application) are on total remuneration packages, and are not paid directly under the SCHADS Award.[70]
McCallum
McCallum accepts that the prevailing pay and conditions are generally aligned with the SCHADS Award.[71] Having regard to the ERO case in the disability sector and comparing that against the equivalent comparative classifications under the Children’s Services Award and other awards, McCallum submitted that employees in the disability sector should not be classified as low paid despite being paid at or around award rates.[72]
McCallum itself pays team leaders at a higher rate than what is funded for supervision
under the NDIS DSW Cost Model (Level 3), but otherwise follows the appropriate SCHADS Award rates of pay.[73]
Findings
What are the prevailing pay and conditions in the disability sector?
In Application by UWU, AEU and IEU, the Full Bench observed that the reference to ‘the relevant industry or sector’ in s.243(1)(b)(i) plainly indicates that the assessment required will extend beyond the pay and conditions of the employees to whom the authorisation sought will apply.[74] Consequently, an applicant for an authorisation might be expected to adduce evidence concerning prevailing pay and conditions within the relevant sector.[75]
The AEU and HACSU relied upon the DRC Report and the NDIS DSW Cost Model to submit that the majority of the disability workforce are employed under the SCHADS Award and paid in accordance with the ERO. The minimum rates of pay in the disability sector are determined by the ERO and the NDIA provides funding according to these rates. They also submitted that even in circumstances where enterprise agreements exist in the sector, the rates of pay provided by those agreements are determined by the SCHADS Award/ERO or rarely exceed the rates of pay provided by the SCHADS Award/ERO due to the constraints of the NDIS DSW Cost Model. This was not seriously contested by the Respondents. In the circumstances, we accept, based on the evidence before us, that rates of pay and conditions that are the same as, or close to, the minimum rates of pay in the ERO and the conditions in the SCHADS Award are prevalent in the disability sector.
Do low rates of pay prevail in the disability sector?
In Application by UWU, AEU and IEU, the Full Bench observed that ‘low rates of pay’ will generally prevail in an industry or sector if employees are paid at or close to the award rates of pay for their classification,[76] however, in a particular case, a prevailing rate of pay which is at or close to the relevant award rate may not be regarded as a ‘low rate of pay’ because the award rate itself is relatively high.[77] The needs of employees who are paid at award rates include improving their terms and conditions of employment in circumstances where there have been constraints on their ability to bargain.[78]
Most of the Respondents have not sought to cavil with the findings of the Full Bench in Application by UWU, AEU and IEU that ‘low rates of pay’ will generally prevail in an industry or sector if employees are paid at or close to the award rates of pay for their classification. However, the Respondents point to rates of pay being set by the ERO, and not the SCHADS Award, and that the rates of pay are higher compared to other awards, to submit that the prevailing rates of pay are not low.
Submissions from the Respondents also include that it is necessary to not only compare award rates, but also pay in other sectors and the levels within industrial instruments that employees are paid, to determine whether there are ‘low rates of pay’.[79] It was submitted that there is nothing in the statute or the surrounding context that would indicate ‘low’ is intended to focus purely on the pay relative to the legal minimums in the industry/profession. Doing so would ignore the ‘levels’ under which employees are at within awards, and how the award rates in that industry compare to rates in other sectors. Windarring urges an interpretation of ‘low rates of pay’ in the context of the constraints of the NDIS pricing framework and suggests that what may be considered low paid in a different context may not be the case within the disability sector.
Many of the Respondents sought to compare the pay of disability support workers with employees under the Children’s Services Award given that the Full Bench in Application by UWU, AEU and IEU found that low rates of pay prevailed in the Early Childhood Education and Care (ECEC) sector because most employees in the ECEC sector were employed pursuant to that award and received award rates of pay.[80] This is an appropriate comparison given that both ECEC employees and disability services employees are largely award dependent. We note that since the hearing of this matter, the Expert Panel in the Gender-based undervaluation – priority awards review case.[81] has indicated a provisional view that there should be a new, simplified classification structure in the Children’s Services Award which is substantially based on the qualifications framework for the ECEC sector, with the rates of pay structured by reference to the Caring Skills benchmark rate.[82] If implemented, this would result in the rates of pay for a level 3 educator being the same as a Level 2, Pay point 1 disability support worker under the ERO.
Some of the Respondents sought to compare rates of pay for disability support workers with rates of pay for employees covered by other awards, including the Legal Services Award 2020 and the Nurses Award 2020. We do not regard these comparisons as particularly useful in circumstances where there is no evidence before us about the extent to which employees covered by those awards are paid either the minimum rates of pay prescribed by those awards or higher rates set by enterprise agreements or other instruments or contracts.
This is the sixth occasion that the Commission has considered a supported bargaining application and the fourth occasion in which a supported bargaining authorisation has been sought in relation to employees covered by the SCHADS Award and ERO. Supported bargaining authorisations have been granted in relation to employees covered by the SCHADS Award and ERO in Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others (ASU v ACTCOSS),[83] Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw (ASU v Inner Melbourne Legal and Youthlaw),[84] and The Health Services Union & The Australian Education Union v Alkira Disability Services Ltd T/A Alkira Centre and Others (HSU and AEU)[85]
In HSU and AEU, Commissioner Lee said that he was satisfied, based on the evidence before him, that the prevailing pay and conditions within the disability sector are at or close to the award rates and conditions provided in the SCHADS Award. Further, Commissioner Lee noted that the SCHADS Award rates of pay are not ‘relatively high’ and that the most commonly used classifications in the SCHADS Award in the disability sector sit well below the average weekly ordinary time earnings for a full-time adult (most recently $1923.40).[86]
In ASU v ACTCOSS,[87] Deputy President Hampton observed that the following matters in relation to pay weighed in favour of making the authorisation:
Nationally, the majority of social and community services (SACS) workers are award dependent and that over award payments are uncommon in the industry.[88]
Even outside the lower classification levels of the SCHADS Award, workers engaged in degree qualified positions often receive a low rate of pay relative to their level of qualification, experience, role complexity, and responsibility.[89]
SACS workers in the community sector tend to earn less than their public sector counterparts for comparable roles, despite the adjustment of pay rates undertaken through the ERO increases.[90]
SACS workers generally have less beneficial conditions of employment in comparison with ACT Government employees when it comes to leave and other entitlements.[91]
In ASU v Inner Melbourne Legal and Youthlaw,[92] Deputy President Hampton observed that the majority of the employees engaged by the employers are generally paid by reference to the SCHADS Award classifications and rates, with some likely exceptions, and that some of the employees who would be covered by the authorisation are award reliant and low paid.[93]
The rates of pay for disability support workers in the SCHADS Award were recently considered by the Expert Panel in the Gender-based undervaluation – priority awards review case.[94] In that case, the Expert Panel observed that the evidence before it amply demonstrated that disability support workers deal with persons with a wide range of conditions and are required in each case not merely to engage in functions associated with the direct physical care of clients but also to be constantly engaged in verbal and non verbal communication with clients in order to be responsive to and meet their ongoing physical, intellectual and emotional needs,[95] and that the requirements of the NDIS have made disability support work more varied and complex than previously.[96]
The Expert Panel found that based upon this evidence and the findings made by the Queensland Industrial Relations Commission in the Queensland CSCA Award decision and by this Commission in the SACS Equal Remuneration decisions:
· the minimum wage rates prescribed by the SCHADS Award for employees within the classifications in Schedules B, C and E do not properly reflect the value of the work to which those classifications apply and that this is the case for reasons related to gender.[97]
· The work to which the classifications apply is caring work involving the exercise of ‘invisible’ skills.[98]
· The workforce which performs this work is, and has historically been, female-dominated.[99]
· The rates of pay applying to the classifications in Schedules B, C and E are not the product of any proper work value assessment by this Commission or the Australian Industrial Relations Commission of the skills utilised in undertaking work of this nature.[100]
· There has never been proper recognition of the skills involved in undertaking the work covered by Schedules B, C and E when setting award wage rates and this has operated to the disadvantage of a highly-feminised workforce.[101]
· Although the ERO rates which apply to schedule B were not made in the exercise of the award-making and variation powers under the FW Act, the way in which the rates were set essentially proceeded on what may be characterised as work value grounds within the meaning of s.157(2A). They were fixed on the basis that they ensure equal remuneration for work of equal or comparable value and can therefore be relied upon as being free of assumptions based on gender. The ERO rates are therefore broadly indicative of what the SCHADS Award rates would be if they were properly based on a gender-neutral assessment of work value.[102]
The effect of the ERO is that strictly speaking, disability support workers are not paid the SCHADS Award rates of pay but at 123% of the SCHADS Award rate of pay (with respect to level 2 employees). The Applicants correctly contend that the ERO is the minimum rate of pay, that most of the Respondents pay employees at this minimum rate and that the NDIA provides funding based upon this rate.
The SCHADS Award has eight classification levels. The NDIS DSW Cost Model indicates that it assumes that disability support workers will be classified at level 2, 3 or 4 of the SCHADS Award, depending upon whether they are performing the work of a Disability Support Worker 1, 2, 4, or 4 as determined by the NDIA.[103]
The evidence of Respondents who provided information about the classification of their employees establishes that they employ the majority of their disability support workers at level 2 and pay them in accordance with the ERO level 2 rate. The ERO weekly rates of pay for a level 2 worker at the time of the hearing[104] were:
Pay point 1: $1,269.73
Pay point 2: $1,309.58
Pay point 3: $1,349.43Pay point 4: $1,385.35
This is consistent with the NDIS DSW Cost Model[105] which states that Disability Support Level 1 worker is assumed to have a SCHADS classification of level 2, pay point 3. It is also consistent with the classification descriptors in the SCHADS Award which specifically refer to the delivery of disability services in level 2 and level 3.
We accept that the rates of pay for disability support workers are higher than the current rates of pay for employees covered by the Children’s Services Award. However, this does not establish that the prevailing rates of pay for disability support workers are high. Further, the fact that disability support workers are paid above the SCHADS Award rates in accordance with the ERO does not automatically lend itself to a conclusion that the rates are high. The Respondents have pointed to numerous examples where the rates of pay in the disability sector are higher than other sectors. It is also likely that there are sectors where the prevailing rates of pay are higher than those in the disability sector. There is nothing in the statute which indicates that the expression ‘low rates of pay’ should be construed in a narrow way which requires comparison only with other award dependent roles or roles that have similar skill requirements and characteristics. To do so would undermine the legislative purpose of improving accessibility and take-up for multi-enterprise bargaining by employers and employees in sectors traditionally excluded from enterprise bargaining.
The Respondents have urged us to exercise caution when referring to statistics to make findings about prevailing rates of pay, however ABS statistics are a far more reliable indicator of the prevailing rates of pay across the economy than the award rates referred to by the Respondents. For the period from August 2023 to August 2024, the median weekly earnings in main job was $1,396.00 and for full time employees it was $1,700.[106] The average weekly ordinary time earnings for full-time adults was $1,975.80 in November 2024.[107] It is not entirely accurate to compare these figures to the Level 2 ERO rates as the Level 2 rates do not include penalty rates and overtime. However, it should be noted that in many cases, disability support workers will be receiving less than the full time ERO rate because of the prevalence of part-time and casual work in the sector.[108]
We find that low rates of pay prevail in the disability sector because:
most employees are employed in the lower levels of the SCHADS Award classification structure and specifically at level 2,
most employees are paid at the minimum rate determined by the ERO,
the level 2 ERO full time rates at the time of the hearing ($1,269.73-$1,385.35)[109] are lower than:
omedian weekly earnings ($1,396.00),
othe median weekly earnings for full time employees ($1,700) and
othe average weekly ordinary time earnings for full-time adults ($1,975.80).
These findings weigh in favour of granting the authorisation sought.
Whether the employers have clearly identifiable common interests: s.243(1)(b)(ii)
Most of the Employers filed evidence addressing geographical location, types of services provided, extent of NDIS funding, workforce composition, rostering practices and applicable industrial instruments. A number of the parties produced an aide memoire which assisted in producing the summary below.[110]
Evidence
Geographical Location
In relation to geographical location:
a. All Respondents have worksite locations in Victoria.
b. Ten Respondents operate worksites in regional Victoria.
c. At least three Respondents operate worksites in both regional Victoria and Metropolitan Melbourne.[111]
Types of disability services
In relation to types of disability services:
a. All of the Respondents provide disability services.
b. Twelve of the Respondents provide day services, group care or centre-based activities.
c. Seven of the Respondents provide residential services (supported independent living).
d. Nine of the Respondents provide respite services (short term accommodation).
e. Eight of the Respondents provide assistance with community participation or community-based supports.
f. Nine of the Respondents provide assistance with accessing/maintaining employment.
g. Seven of the Respondents provide assistance with support coordination or plan management.
h. A number of the Respondents provide services outside of the disability sector. ASTERIA provides out of home care services for children and young people in the child protection system. Menzies and Community Accessability both provide aged care services. Life Skills is a community service organisation, providing a broad range of programs, events, activities and education and training pathways to all members of the community, rather than solely to people with a disability. Amicus provides non-NDIS funded community services.[112]
Number of Employees
In relation to number of employees:
a. Three of the Respondents have less than 50 employees in disability support services.
b. Five of the Respondents have between 100 to 200 employees in disability support services.
c. Two of the Respondents have more than 200 employees in disability support services.[113]
NDIS funding
In relation to NDIS funding:
a. All Respondents receive some portion of NDIS funding for disability services.
b. Amicus and ASTERIA receive a mixture of NDIS funding and State Government funding.[114]
c. Distinctive Options, George Grey, Life Skills and Noweyung are ‘predominantly funded’ by the NDIS.[115]
d. Mambourin and Windarring receive 89% or more of their revenue through NDIS funding.[116]
e. Community Accessability provides both NDIS funded services and non-NDIS funded services.[117]
SCHADS Award classification
Employees of the Respondents range between the following classifications under the SCHADS Award:
a. Employees of Amicus range between Levels 2.1 to 7.3.[118]
b. Employees of Community Accessability range between Levels 1 to 8.[119]
c. Employees of Menzies are predominantly employed at Level 2.[120]
d. Employees of Mambourin range between Levels 1 to 4.[121]
e. Employees of McCallum range between Levels 2 to 8.[122]
Hours of work/rostering practices
In relation to hours of work and rostering practices:
a. At Aurora, employees generally work between 7am to 5.30pm, Monday to Friday.
b. At Community Accessability, there is a wide range of hours depending on activities, for example, 24/7 (home support), 8am to 5pm (day programs) with a goal of consistency of carers.
c. At Distinctive Options, Day Services operate generally 9am to 15:30, Monday to Friday. Residential Services, Independent Living and Supported Travel operate 24 hours per day, 7 days per week.
d. George Gray operates mainly between 9:00 and 15:30, Monday to Friday.
e. Life Skills operates between 9:00 and 16:30, Monday to Friday.
f. McCallum operates a variety of hours for different NDIS Registration Type – from 8.45am to 3.30pm, 4 days per week (Community Participate) to 24/7 for various other activities.
g. Windarring operates 24/7 for certain services.
Above award conditions of employment
Amicus submitted that it does not provide additional benefits to staff under the SCHADS Award, unless they perform a sleepover shift. Payments for sleepovers are in accordance with the SCHADS Award. Any ‘active’ time during the eight hour sleepover is paid at the night shift rate, after the first hour. In addition, instead of paying the sleepover allowance under the SCHADS Award, Amicus pays a flat rate of $100.[123]
Given its remoteness, ASTERIA decided to pay 12% superannuation in July 2021 to attract new employees.[124]
Employees of Aurora are currently covered by a zombie agreement, the Whittlesea District ATSS Disability Services Victoria (Part 1) Collective Agreement (2008). Aurora submitted that if this agreement is terminated, it would honour to the best of its capacity some of the above-award entitlements that its employees would no longer be receiving. For example, Aurora’s Committee of Management was prepared to allocate seven days of ex gratia leave to all employees between 27 December 2023 to 5 January 2024 so that employees could have a two week end-of-year break in addition to the leave entitlements provided to them by the SCHADS Award. It is Aurora’s intention that this will continue in years to come, provided that organisational finances can sustain this.[125] Aurora states that its support workers are paid at level 3 of the SCHADS Award.[126]
Most of the Respondents have at least some employees who are employed pursuant to the SCHADS Award. Where the Respondents have employees who are covered by zombie agreements, the intention of all the Respondents, if the authorisation is not made, appears to be to apply the SCHADS Award when the zombie agreements terminate, and in some cases apply over award conditions by way of policy in respect of leave entitlements and/or sleepover allowances. The granting of the authorisation will enable the Respondents and their employees to consider whether any specific modifications of the SCHADS Award conditions should be made to meet their needs, however there is no evidence before us which indicates that the SCHADS Award conditions are not working well for each of the Respondents and that significant changes to current conditions are likely to be sought. In relation to the different financial circumstances of the Respondents, we repeat our earlier observations that we accept that for most of the Respondents, their capacity to fund pay and conditions greater than the SCHADS Award is severely constrained by the NDIS pricing model and that where an employer’s operation is dependent upon a fixed funding model provided by the Government, that this is an obstacle to bargaining contemplated by the Commission’s powers under s.246(3).
Having regard to these matters, the operational differences identified by the Respondents do not weigh against a finding that it is appropriate for the Respondents and their employees to bargain together.
Most of the findings that we have made which favour the authorisation being made are likely to be available in respect of most, if not all, disability services funded by the NDIS in Australia. In ASU v Inner Melbourne Legal and Youthlaw, Deputy President Hampton observed that in some circumstances, the grouping of a small number of employers within a proposed authorisation of this kind, from amongst a much wider cross-section of employers in a sector, may need to be considered.[318] In our view, the reason for the selection of the Respondents in this matter is an important consideration as to whether it is appropriate for them to bargain together.
In this case, the common ‘need’ amongst many of the employees covered by the application (compared to the needs of employees in the disability sector generally) is the retention of above award conditions currently provided in zombie agreements which continue to apply. As noted above, many of the Respondents provide some above award conditions, however, apart from those conditions which continue to be provided for in zombie agreements, these arrangements are not currently provided for in an industrial instrument, so they are not regulated by the FW Act. It would be consistent with the objects of the FW Act for employees to have certainty in relation to these above award conditions and to be able to collectively negotiate these conditions.
This common need is not shared by employees of Respondents who are no longer covered by zombie agreements. Although these employees may wish to receive the enhanced leave conditions and other entitlements previously provided by expired zombie agreements, there is no evidence that they continue to receive those benefits, apart from some employees at Mambourin, who receive enhanced long service leave as an over award benefit. These employees may have previously experienced a reduction in their conditions, but they are in a different position to the employees who are covered by zombie agreements which remain in force, who wish to maintain and protect above award conditions that they currently receive by operation of an industrial instrument.
Generally, the way that employees secure above award conditions under the FW Act is through bargaining. However, as already noted in this decision, there has been no recent history of bargaining with most of the Respondents (apart from Mambourin) due to unwillingness to bargain and/or funding constraints. Although some of the Respondents have indicated that they are willing to bargain for a single-enterprise agreement, they have taken no steps to initiate bargaining (apart from Mambourin) and it is difficult to see how bargaining for a single-enterprise agreement could be successful given the barriers that all the Respondents have identified.
As there is no recent history of bargaining with most of the Respondents, we have found that this is a matter which weighs in favour of a finding that it would be appropriate for the Respondents (apart from Mambourin) to bargain together.
In circumstances where the Respondents covered by zombie agreements have not initiated bargaining for a single-enterprise agreement and at least some of their employees will be disadvantaged by the zombie agreements terminating, we find it is appropriate that the Respondents who are covered by at least one zombie agreement bargain together having regard to all of the matters in s.243(1)(b). These Respondents are:
ASTERIA
Aurora
Community Accessability
Distinctive Options and Noweyung
George Gray
Life Skills
McCallum
Milparinka
Mirridong
Windarring
It follows that we are not satisfied that it is appropriate for the following Respondents, that are not covered by zombie agreements, to bargain with the Respondents that are covered by zombie agreements:
Amicus;
Menzies; and
Mambourin
As such, Amicus, Menzies and Mambourin will not be covered by the authorisation.
Section 243(1)(c) — Are at least some of the employees who will be covered by the Agreement represented by an employee organisation?
We are satisfied, based on the evidence of Ms Gillespie and Ms Carter that at least some of the employees who will be covered by the Proposed Agreement are represented by the IEU and HACSU as required by s.243(1)(c).
Conclusion
On the basis of our consideration of the matters specified in s.243(1)(b) of the FW Act, we are satisfied that it is appropriate for the following Respondents and their employees who perform disability work in Victoria (not including employees of the Respondents whose employment is covered by the Supported Employment Services Award 2020) to bargain together:
ASTERIA
Aurora
Community Accessability
Distinctive Options and Noweyung
George Gray
Life Skills
McCallum
Milparinka
Mirridong
Windarring
Further, we are satisfied in relation to each of the applicable requirements in s.243(1), and that the restrictions in s.243A do not apply. We are therefore required to make the supported bargaining authorisation sought by HACSU and the AEU. The authorisation is made by a separate order that is published in conjunction with this decision and which specifies the matters required by s.243(3), as applicable. In accordance with s.234(4), the authorisation will operate from the date of this decision.
DEPUTY PRESIDENT
Appearances:
Ms N. Stojanova, Counsel, for the Health Services Union
Ms S. Kelly, Counsel, for the Australian Education Union
Mr L. Meagher, Counsel, for the Respondent (Community Accessability)
Mr D. Ternovski, Counsel, for the Respondent (Mambourin Enterprises)
Mr C. Broadbent, Solicitor, for the Respondent (McCallum Disability Services)
Mr D. Prior, Legal Representative, for the Respondent (Milparinka Disability Services)
Ms L. Quinn, Legal Representative, for the Respondents (George Gray Centre, Life Skills Victoria, Distinctive Options AND Noweyung, and Dame Pattie Menzies Centre)
Mr M. Amor, the Respondent (Windarring Limited)
Ms A. Constable, the Respondent (Asteria Services)
Ms S. Wight, the Respondent (Amicus Community Services)
Ms D. Milne, the Respondent (Mirridong Services)
Mr J. Stanton, the Intervenor (Ai Group)
Ms K. Tobin, the Intervenor (ACTU)
Hearing details:
2024
11 and 12 November
In person, Melbourne
[1] Witness Statement of Elaine Gillespie dated 2 February 2024 (Gillespie Statement) [2], Digital Court Book (DCB) 255
[2] Ibid [17], DCB 258
[3] Ibid [5]-[6] DCB 256
[4] Ibid [18], DCB 258
[5] Ibid [19], DCB 258
[6] Ibid [19], DCB 258
[7] Ibid [20], DCB 258
[8] Witness Statement of Angela Carter dated 2 February 2024 (Carter Statement) [12], DCB 39
[9] Gillespie Statement [21], DCB 258
[10] Ibid [22], DCB 258
[11] Ibid [23], DCB 258
[12] Carter Statement [17], DCB 40
[13] Ibid [17], DCB 40
[14] Ibid [19], DCB 40
[15] Ibid [21], DCB 41
[16] Ibid
[17] Gillespie Statement [24], DCB 259
[18] Gillespie Statement [25]-[26], DCB 259
[19] Ibid [27], DCB 259
[20] Ibid [28], DCB 259
[21] Ibid [29], DCB 261
[22] Ibid [30], DCB 261
[23] Carter Statement [22], DHB 41
[24] Ibid [23], DHB 41
[25] Ibid [24], DHB 42
[26] Ibid [26], DHB 42
[27] [2023] FWCFB 176
[28] Ibid [20]
[29] [2023] FWCFB 176, [20]
[30] Ibid, [27]
[31] Ibid, [27]
[32] Ibid, [41]
[33] Ibid, [29]
[34] Gillespie Statement [12], DCB 257; Carter Statement [9], DHB 39
[35] Outline of Submissions of the Australian Education Union [5]-[6], DCB 239
[36] Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [10], DCB 1404
[37] Outline of Submissions – McCallum Disability Services Inc [9], DCB 1590
[38] Ibid [10], DCB 1590
[39] Ibid [11], DCB 1590
[40] Ibid [12], DCB 1590
[41] Carter Statement [12], DCB 39
[42] Outline of Submissions - George Gray Centre [4], DCB 1321
[43] Outline of Submissions - Distinctive Options and Noweyung Ltd [5], DCB 1280
[44] Application by UWU, AEU and IEU [2023] FWCFB 176, [29].
[45] Outline of Submissions of the AEU [26]-[27], DCB 245-246
[46] Carter Statement [27], DCB 42-43
[47] Ibid [31], DCB 43-44
[48] Outline of Submissions by HACSU [39], DCB 26-27
[49] Ibid [41] DCB 28
[50] Ibid [42], DCB 28
[51] Outline of Submissions of the ACTU [40], DCB 1857
[52] Ibid [41], DCB 1857
[53] Ibid [41], DCB 1857-1858
[54] Ibid [43], DCB 1858
[55] Submissions by ASTERIA Services Inc [53], DCB 863
[56] Outline of Submissions of Community Accessability [1(a)], DCB 907
[57] Ibid [15(b)], DCB 912
[58] Ibid
[59] Ibid [15(c)], DCB 912
[60] Ibid [16], DCB 913
[61] Distinctive Options and Noweyung Ltd Outline of Submissions [26]-[28], DCB 1286; George Gray Centre Outline of Submissions [25]-[27], DCB 1326; Life Skills Victoria Outline of Submissions [29], DCB 1373
[62] Submissions of Windarring Limited [21], DCB 1738
[63] Ibid [25], DCB 1739
[64] Ibid [26], DCB 1739-1740
[65] Ibid [28], DCB 1740
[66] Ibid [32], DCB 1741
[67] Ibid [33], DCB 1741
[68] Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [18], DCB 1410
[69] Ibid [20], DCB 1410
[70] Ibid [21], DCB 1410-1411
[71] Outline of Submissions – McCallum Disability Services Inc [138], DCB 1608
[72] Ibid [144], DCB 1608
[73] Ibid [147], DCB 1609
[74] Application by UWU, AEU and IEU [2023] FWCFB 176, [30]
[75] Ibid
[76] Ibid, [32]
[77] Ibid, [33]
[78] Ibid, [32]
[79] Outline of Submissions of Community Accessability [15(b)], DCB 912
[80] [2023] FWCFB 176, [48]
[81] [2025] FWCFB 74
[82] Ibid, [557]
[83] [2024] FWC 2036
[84] [2024] FWC 2491
[85] [2024] FWC 2713
[86] Ibid, [85]
[87] [2024] FWC 2036
[88] Ibid, [38]
[89] Ibid, [36]
[90] Ibid, [37]
[91] Ibid, [38]
[92] [2024] FWC 2491
[93] Ibid, [27]-[28]
[94] [2025] FWCFB 74
[95] Ibid, [362]
[96] Ibid, [372]
[97] Ibid, [376]
[98] Ibid
[99] Ibid
[100] Ibid
[101] Ibid
[102] Ibid [377]
[103] Disability Support Worker 1, 2, 4, or 4 are not SCHADS Award classifications but are four types of workers referred to in the NDIS DSW Cost Model which recognise ‘that providers must employ Disability Support Workers with different skill levels and level of experience to meet the needs of participants’.
[104] These rates of pay will increase by 3.5% pursuant to the Annual Wage Review 2025 from the employee’s first full pay period that starts on or after 1 July 2025.
[105] Exhibit 4
[106] Employee earnings, Australian Bureau of Statistics, August 2024
[107] Average weekly earnings, Australian Bureau of Statistics, November 2024
[108] Carter Statement [38], DCB 45
[109] These rates of pay will increase by 3.5% pursuant to the Annual Wage Review 2025 from the employee’s first full pay period that starts on or after 1 July 2025.
[110] Aide Memoire prepared by the Australian Education Union
[111] Ibid
[112] Ibid
[113] Ibid
[114] DCB 830 and 872
[115] DCB 1294, 1333 and 1379
[116] DCB 1427 and 1760
[117] DCB 922
[118] DCB 828-829
[119] DCB 925-926
[120] DCB 1277
[121] DCB 1426
[122] DCB 638
[123] Witness Statement and Submission of Katrina Ray, Head of People & Culture – Amicus Community Services, DCB 829
[124] Witness Statement of Annie Constable [10], DCB 872
[125] Submission of Aurora Support Services, DCB 899
[126] Ibid, DCB 900
[127] Witness Statement of Rick Lawford dated 15 March 2024 [33], DCB 925
[128] [34] DCB 926
[129] Witness Statement of Lauren Baker dated 15 March 2024 [41f], DCB 1628
[130] Submissions of Mirridong Services [2], DCB 1731
[131] Ibid [21], DCB 1410-1411
[132] DCB 828-829
[133] DCB 919
[134] DCB 1277
[135] DCB 1292
[136] DCB 1322
[137] DCB 1368
[138] DCB 1425-1426
[139] DCB 1635-1636
[140] DCB 1762-1793
[141] DCB 827
[142] DCB 904
[143] DCB 919
[144] DCB 1281-1282
[145] DCB 1332
[146] DCB 1368-1369
[147] DCB 1425
[148] DCB 1633
[149] DCB 1731
[150] DCB 1762-1763
[151] Transcript PN443-PN444
[152] Outline of Submissions of HACSU [47], DCB 29-32
[153] Ibid [49], DCB 32-33
[154] Submissions of Asteria [58], DCB 864
[155] Ibid [59], DCB 864
[156] Ibid [64], DCB 864
[157] Outline of Submissions of Community Accessability [18(a)], DCB 913
[158] Ibid [20], DCB 914
[159] Ibid [21], DCB 914
[160] Ibid [21(a)], DCB 914
[161] Supplementary Outline of Submissions of Community Accessability [4]-[6], DCB 1830
[162] Ibid [8], DCB 1830
[163] Supplementary Outline of Submissions of Community Accessability [10], DCB 1831
[164] Outline of Submissions of Community Accessability [21(c)], DCB 914-915
[165] Supplementary Outline of Submissions of Community Accessability [13], DCB 1832
[166] George Gray Centre – Outline of Submissions [29], DCB 1327
[167] Ibid [31]-[33], DCB 1373
[168] Witness Statement of Carole Broxham dated 14 March 2024 [19], DCB 1379
[169] Submissions of Windarring [39], DCB 1743
[170] Ibid [42], DCB 1744
[171] Ibid [44], DCB 1745
[172] Ibid [46], DCB 1746
[173] Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [23]-[26], DCB 1411
[174] Ibid [28], DCB 1412
[175] Ibid [28], DCB 1413
[176] Ibid [29], DCB 1413
[177] Ibid [30], DCB 1413
[178] Ibid [31], DCB 1413-1414
[179] Ibid [32], DCB 1414
[180] Outline of Submissions – McCallum Disability Services Inc [178], DCB 1614
[181] Ibid [189], DCB 1614
[182] Supplementary Outline of Submissions – McCallum Disability Services Inc [15], DCB 1841
[183] Outline of Submissions – McCallum Disability Services Inc [191], DCB 1617
[184] Ibid [185]-[187], DCB 1615
[185] Ibid [194]-[199] DCB 1617-1618
[186] Application by UWU, AEU and IEU [2023] FWCFB 176, [34].
[187] [2024] FWC 2583
[188] Ibid, [45]
[189] [2024] FWC 2036, [61].
[190] Ibid, [42]-[43]
[191] [2024] FWC 2713
[192] Ibid, [30]
[193] Outline of Submissions of the AEU [30], DCB 247
[194] Ibid [31], DCB 247
[195] Outline of Submissions of HACSU [54], DCB 33
[196] Ibid [54], DCB 34
[197] Outline of Submissions of the ACTU [55], DCB 1859
[198] Ibid [56], DCB 1859
[199] Australia Industry Group Submission [40], DCB 1895
[200] Submissions of ASTERIA Services Inc [72]-[73], DCB 865
[201] Ibid [74], DCB 866
[202] Ibid [76], DCB 866
[203] Outline of Submissions of Community Accessability [23], DCB 915
[204] Submissions of Windarring Limited [47]-[49], DCB 1746-1747
[205] Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [37]-[38], DCB 1415
[206] Ibid [40]-[41] DCB 1415
[207] Ibid [43] DCB 1415
[208] Ibid [44] DCB 1416
[209] Outline of Submissions – McCallum Disability Services Inc [201]-[202], DCB 1618
[210] Ibid [209], DCB 1619
[211] Application by UWU, AEU and IEU [2023] FWCFB 176, [36]
[212] See for example Apple Pty Limited [2023] FWCFB 185, [5] where there were 107 employee bargaining representatives for the Apple Australia National Enterprise Agreement 2023 in addition to two unions.
[213] Application by UWU, AEU and IEU [2023] FWCFB 176, [37]
[214] Outline of Submissions of the ACTU [67]-[68], DCB 1862
[215] Outline of Submissions of the ACTU [76]-[77], DCB 1863
[216] Outline of Submissions of HACSU [61], DCB 35
[217] Ibid [65], DCB 35
[218] Ibid [66]-[67], DCB 36
[219] Australia Industry Group Submissions, [15], DCB 1888
[220] Ibid, [44], DCB 1896
[221] Ibid, [46], DCB 1896
[222] Ibid, [53], DCB 1898
[223] Ibid, [54], DCB 1898
[224] Ibid, [54], DCB 1899
[225] Witness Statement and Submission of Katrina Ray, Head of People & Culture – Amicus Community Services, DCB 830
[226] Submissions of ASTERIA Services Inc [80], DCB 866
[227] Ibid [81], DCB 866
[228] Ibid [85], DCB 867
[229] Ibid [90], DCB 868
[230] Ibid [94], DCB 868
[231] Ibid [96], DCB 868
[232] Ibid [98], DCB 869
[233] Ibid [109]-[110], DCB 870
[234] Ibid [111], DCB 870
[235] Ibid [113], DCB 871
[236] Outline of Submissions of Community Accessability [27], DCB 916
[237] Ibid [30], DCB 916
[238] Ibid, [31], DCB 917
[239] Ibid [32], DCB 917
[240] Ibid [33], DCB 917
[241] Distinctive Options and Noweyung Ltd – Outline of Submissions [41] DCB 1288
[242] Ibid [42]-[43], DCB 1288
[243] Ibid [44], DCB 1288
[244] Statement of Ernie Metcalf dated 14 March 2024 [17], DCB 1294
[245] George Gray Centre – Outline of Submissions [41]-[42], DCB 1328
[246] Witness Statement of Peter Green dated 14 March 2024 [16]-[17], DCB 1333
[247] Ibid [18], DCB 1333
[248] Submission of Mirridong Services Inc [1], DCB 1731
[249] Ibid [2], DCB 1731
[250] Ibid [2], DCB 1731
[251] [51] DHB 1748
[252] [53]-[59] DHB 1749-1750
[253] [60]-[62] DHB 1750-1751
[254] [65]-[68] DHB 1752
[255] Submissions of Windarring [71]-[73], DCB 1753
[256] Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [46]-[47], DCB 1416
[257] Ibid [55], DCB 1417
[258] Ibid [56]-[57], DCB 1417-1418
[259] Ibid [58]-[59], DCB 1418
[260] Ibid [60]-[61], DCB 1418
[261] Ibid [62]-[64], DCB 1418
[262] Ibid [65], DCB 1419
[263] Ibid [67]-[69], DCB 1419
[264] Ibid [70]-[73], DCB 1419
[265] Outline of submissions on behalf of Mambourin Enterprises Pty Ltd [75]-[78] DCB 1420
[266] Ibid [79]-[81], DCB 1421
[267] Ibid [82], DCB 1421
[268] Ibid [85], DCB 1422
[269] Outline of Submissions – McCallum Disability Services Inc [27], DCB 1593
[270] Ibid [33], DCB 1594
[271] Ibid [35]-[36], DCB 1595
[272] Ibid, [44] DCB 1596
[273] Ibid, [49] DCB 1596
[274] Ibid, [58] DCB 1598
[275] Ibid, [63] DCB 1598
[276] Ibid, [78]-[81] DCB 1601
[277] Ibid [83]-[87], DCB 1601
[278] Ibid [100], DCB 1603
[279]Ibid [101]-[104], DCB 1603
[280] Ibid [121], DCB 1605
[281] Ibid [128]-[129], DCB 1606
[282] Ibid [133]-[135], DCB 1607
[283] Application by UWU, AEU and IEU [2023] FWCFB 176, [54]; Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others[2024] FWC 2036, [58]; Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw[2024] FWC 2491, [39].
[284] Witness Statement and Submission of Katrina Ray, Head of People & Culture – Amicus Community Services, DCB 829
[285] Witness Statement of Annie Constable [10], DCB 872
[286] Ibid, DCB 900
[287] Submission of Aurora Support Services, DCB 899
[288] Witness Statement of Rick Lawford dated 15 March 2024 [34], DCB 926
[289] Witness Statement of Lauren Baker dated 15 March 2024 [41f], DCB 1628
[290] Ibid [21], DCB 1410-1411
[291] Transcript PN1033
[292] [2024] FWCFB 3500
[293] Ibid, [109]
[294] Ibid
[295] [2024] FWCFB 461
[296] Ibid, [19]-[22]
[297] Ibid [26]
[298] Transcript PN302
[299] [2024] FWC 2491
[300] Transcript PN 1157
[301] [2023] FWCFB 176, [41]
[302] Ibid
[303] Outline of Reply Submissions of the Australian Education Union [11], DCB 771-772
[304] Applications by Australian Education Union to extend default period for the collective agreement based transitional instruments listed in schedule 1 [2024] FWCFB 233, [62]-[63]
[305] Applications by Australian Education Union to extend default period for the collective agreement based transitional instruments listed in schedule 1 [2024] FWCFB 233, [62]-[63]
[306] Ibid, [64]
[307] Ibid, [31]; [59]; [66].
[308] Outline of Reply Submissions of the Australian Education Union [5b], DCB 770
[309] Application by UWU, AEU and IEU [2023] FWCFB 176, [55]; Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others[2024] FWC 2036, [59]-[60]; Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw[2024] FWC 2491. [40];
[310] Application by UWU, AEU and IEU [2023] FWCFB 176, [56]; Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others[2024] FWC 2036, [61].
[311] Australian Municipal, Administrative, Clerical and Services Union v Australian Capital Territory Council of Social Service Inc T/A ACTCOSS and Others[2024] FWC 2036, [62]; Australian Municipal, Administrative, Clerical and Services Union v Inner Melbourne Community Legal Inc T/A Inner Melbourne Community Legal, Young People's Legal Rights Centre Inc T/A Youthlaw [2024] FWC 2491, [43].
[312] Natasha Cortis et al, UNSW Social Policy Research Centre, Gender-based Occupational Segregation: A National Data Profile (Final Report, 6 November 2023) (‘Stage 1 report’) cited in [2024] FWCFB 3500, [92]
[313] Transcript PN367
[314] Transcript PN368
[315] Transcript PN369
[316] Transcript PN370
[317] Transcript PN372
[318] [2024] FWC 2491, [44]
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