[2018] FWCFB 5712


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Supported Employment Services Award 2010



Supported Employment Services Award 2010.

[1] As part of the conduct of the 4 yearly review of modern awards, this Full Bench has been allocated for determination a number of applications to vary the Supported Employment Services Award 2010 (Award). These include:

(1) an application by the AED Legal Centre, with the support of the Health Services Union (HSU) and United Voice, for the removal of all of the wage assessment tools specified in clause 14.4(b) of the Award except for the Supported Wage System (SWS); and

(2) an application by Australian Business Industrial and the NSW Business Chamber (ABI/NSWBC) to insert a new classification structure as an alternative for employers which did not wish to utilise a wage assessment tool.

[2] These applications were the subject of inspections, evidence and submissions during a hearing conducted before us on 5-9 and 12-16 February 2018.

[3] On 16 April 2018 we issued a Statement 1 in which we expressed a number of provisional conclusions concerning the applications before us. In summary, we expressed the provisional view that the determination of wages for supported employees by the use of the wage assessment tools currently prescribed in clause 14.4 of the Award did not meet the modern awards objective, but that neither of the applications to which we have referred provided an appropriate resolution of this difficulty. We further stated the provisional view that the existing wage assessment tools should be phased out and replaced by a new classification structure together with a single new wage assessment tool, and outlined the principles that might underlie the establishment of this new wage assessment mechanism. We then stated:

“…(10) The interested industry parties and the Commonwealth will be given an opportunity to participate in a conferral process conducted by a member of this Full Bench in order to design a new classification structure and wage assessment mechanism consistent with the above conclusions. This conferral process will include consideration of:

  the length of the phase-out period for the existing wage assessment tools;

  the establishment of objective criteria for the “sizing” of jobs performed by supported employees;

  how the SWS might be modified, or an analogous mechanism established, for the measurement of the output of a supported employee in a particular job; and

  transitional arrangements concerning existing wage rates and transitional time periods for ADEs with a demonstrated economic incapacity to pay.

(11) We consider it highly desirable that both elements of the new wage assessment mechanism be supported by the provision by the Commonwealth of trained and independent assessors. We therefore consider that the close involvement of the Commonwealth in the design of the detail of the new wage assessment mechanism would be in the public interest.

(12) The new wage assessment mechanism should be trialled early in the phase-out period to determine its wage cost impact and to identify any other difficulties before the Commission approves its inclusion in the Award.

(13) If a broad consensus about the design of the new wage assessment mechanism cannot be reached within a reasonable timeframe, then this will be determined by us.” 2

[4] We conducted a report-back hearing on 29 May 2018 in order to give interested parties an opportunity to respond to the provisional views we expressed in the 16 April 2018 Statement. Although a number of parties indicated a willingness to participate in the conferral process envisaged in the Statement, some parties indicated firm opposition to such a course being taken. In particular:

  United Voice submitted that there was not “any realistic capacity” for the interested parties to reach agreement, and that the most appropriate course would be to deal with the outstanding matters by way of “Option 2” (that is, final determination of the outstanding matters by the Full Bench).3

  The HSU submitted that it had “significant concerns” about a number of matters raised in the Statement and was not prepared to participate in a conferral process beyond a strictly limited period of time4 (being the four dates in June which were indicated by us as being available for the envisaged conferral process5).

  The AED Legal Centre requested that “Option 2” be taken.6

[5] Having regard to the attitude taken by United Voice, the HSU and the AED Legal Centre (which, apart from Our Voice Australia, are the interested parties seeking to represent the interests of supported employees in the conduct of the review), we do not consider that the conferral process envisaged in the 16 April 2018 Statement is likely to achieve the desired objective of a “broad consensus about the design of the new wage assessment mechanism”. Therefore we consider it is necessary for us to proceed to determine to finality the matters before us. That will require us to receive any submissions which interested parties wish to make in response to the provisional conclusions expressed in the Statement before issuing a final decision.

[6] We direct that written submissions in response to the 16 April 2018 Statement are to be filed in the Commission on or before 19 October 2018. Such submissions may include:

(1) any submissions which any party wishes to make concerning the merit of the provisional views expressed in the Statement; and

(2) any proposal which any party wishes to advance concerning the design and implementation of the new wage assessment mechanism outlined in the Statement, should the Full Bench ultimately determine to proceed with the provisional views expressed therein.

[7] A party may address the second matter in its written submissions without prejudice to any submissions it wishes to make concerning the first matter.

[8] We will also provide interested parties with an opportunity to supplement their written submissions with oral submissions. For this purpose, there will be a further hearing before us on 5 and 6 November 2018.

al of the Fair Work Commission with the memeber's signature.


Printed by authority of the Commonwealth Government Printer


 1   [2018] FWCFB 2196

 2   Ibid at [15]

3 Transcript 29 May 2018 PNs 32,34

4 Transcript 29 May 2018 PNs 42-47

5 Transcript 29 May 2018 PN 27

6 Transcript 29 May 2018 PN 51