[2017] FWCFB 5073


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

Supported Employment Services Award 2010



4 yearly review of the Supported Employment Services Award 2010.

[1] On 16 December 2013, the Health Services Union (HSU) and United Voice made a joint application (application) under s.160 of the Fair Work Act 2009 (the FW Act) to vary the Supported Employment Services Award 2010 (Award). The Award applies to employers and employees in an Australian Disability Enterprise (ADE). The variation sought was to remove all wage assessment tools from the Award, except for the Supported Wage System (SWS).

[2] The application came before a Full Bench and the Full Bench referred the application to a member of the Full Bench, Deputy President Booth, for conciliation. Conciliation was undertaken by Deputy President Booth between 15 September 2014 and 21 April 2017. The parties attending conciliation conferences convened by Deputy President Booth included the HSU, United Voice, the Australian Council of Trade Unions (ACTU), National Disability Services (NDS), Australian Business Limited (ABL), a number of disability advocacy representatives, managers from individual Australian Disability Enterprises (ADEs) and representatives of parents and carers. The Commonwealth Department of Social Services (DSS) also attended the conciliation conferences as an observer.

[3] During the course of conciliation the parties agreed to remove the Business Services

Wage Assessment Tool (BSWAT) from the Award. A consent order was issued to give effect to the removal of the BSWAT on 5 June 2015. 1 Conciliation then continued following this variation to the Award.

[4] On 15 October 2016 Deputy President Booth issued a Statement 2 reflecting progress in conciliation. In this Statement she reported the interests the parties agreed they sought to advance in the conciliation of the application. These interests are:

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

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

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

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

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

[10] On 10 July 2017 Vice President Hatcher issued directions in relation to the contested substantive matters in the Award Review. 3 The hearing in relation to these matters will be conducted by the Full Bench on 5–9 and 12–16 February 2018.

scription: Seal of the Fair Work Commission with the member's signature.

Hearing details:
19 June.

 1   PR568011

 2   [2015] FWC 7134

 3   Directions, 10 July 2017

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