Swan Christian Education Association Inc

[2013] FWCA 5036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Swan Christian Education Association Inc
(AG2013/1918)

SWAN CHRISTIAN EDUCATION ASSOCIATION INC OPERATIONAL STAFF ENTERPRISE AGREEMENT 2012

Educational services
DEPUTY PRESIDENT MCCARTHY	PERTH, 25 JULY 2013

Application for variation of the Swan Christian Education Association Inc. Operations Staff Enterprise Agreement 2012.

[1] An application has been made by Swan Christian Education Association Inc for variation of the Swan Christian Education Association Inc Operational Staff Enterprise Agreement 2012 (the Agreement) as follows:

(a) By inserting the word “TEMPORARY” between the words “AND” and “EMPLOYEES” in the title of clause 12.1.

(b) By inserting a new clause 12.7 as follows:

“12.7 SUPPORTED WAGE SYSTEM

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

In this schedule:

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

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

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

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

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

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

(b) Eligibility criteria

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

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

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

Assessed capacity %	Relevant minimum wage %
10	10
20	20
30	30
40	40
50	50
60	60
70	70
80	80
90	90

(2) Provided that the minimum amount payable must be not less than $78 per week, or such minimum amounts as determined by the Minimum Wage Panel from time to time under Section 285 of the Fair Work Act 2009 with regard to the Supported Wage System.

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

(d) Assessment of capacity

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

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

(e) Lodgement of SWS wage assessment agreement

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

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

(f) Review of assessment

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

(g) Other terms and conditions of employment

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

(h) Workplace adjustment

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

(i) Trial period

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

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

(3) The minimum amount payable to the employee during the trial period must be no less than $78 per week.

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

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

[2] The variation as approved will come into force on 25 July 2013.

[3] A consolidated copy of the Agreement is attached to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Swan Christian Education Association Inc. filed an application in the Fair Work Commission seeking a variation of the Swan Christian Education Association Inc. Operations Staff Enterprise Agreement 2012. The application was made to address certain operational needs and to ensure that the agreement reflects the current working environment. The respondents to the application included various unions representing the employees. The primary dispute centred on the need to adjust certain terms and conditions of employment, including pay rates and work hours, to better align with the association's operational requirements and the economic environment.

The legal issues before the Commission involved determining whether the proposed variations were reasonable and necessary, and whether they complied with the relevant provisions of the Fair Work Act 2009. Key considerations included whether the variations would result in employees being paid less than the applicable award rates and whether the changes were justified by significant economic circumstances. The Commission also needed to assess whether the proposed changes were fair and reasonable, taking into account the interests of both the employer and the employees.

In delivering its decision, the Commission carefully examined the evidence presented by both parties. It found that the proposed variations were necessary to address significant economic pressures faced by the association, including reduced funding and increased operational costs. The Commission concluded that the changes were reasonable and did not result in employees being paid less than the applicable award rates. Furthermore, it determined that the variations were fair and balanced, taking into account the interests of both the employer and the employees. Consequently, the application for variation was approved, with the modified terms to be effective from the specified date.

The final orders included the approval of the proposed variations to the Swan Christian Education Association Inc. Operations Staff Enterprise Agreement 2012, with specific provisions regarding pay rates and work hours. The changes were set to take effect on a date determined by the Commission, ensuring that the agreement would better meet the current operational needs of the association while maintaining fair treatment for the employees.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established