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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards – Supported Employment Services Award 2020





10.00 AM, THURSDAY, 18 AUGUST 2022


Continued from 17/08/2022



VICE PRESIDENT HATCHER:  Mr Ward, if I could, the Department just wants to deal with a procedural matter.


MR WARD:  Okay.




MS GRUSCHKA:  Good morning, your Honour.  On Tuesday you asked the Department about if submissions were made in position to proceeding.




MS GRUSCHKA:  On the construction of section 153.  We've been progressing enquiries to get instructions on that.  As it stands this morning, I don't have instructions from my client as to whether or not they're prepared to adopt those positions for the purpose of these proceedings.


VICE PRESIDENT HATCHER:  I should inform you that we've obtained access to them, so.


MS GRUSCHKA:  So, it seems that you have access to the submissions, the outstanding issues of course, what my instructions are as to what the Commonwealth wants to say in these proceedings about that position.  There are two reasons why I don't have those instructions yet.  Number one, the previous submissions were made under a different government.  Number two, the submissions themselves cover three different pieces of legislation and they're all in different portfolios.  We're progressing the instruction as quickly as we have them.  I'd like to request that the Commonwealth be given seven days, your Honour, to provide some extra submissions under section 153.  I've spoken to the Department about that about making these requests.  They don't oppose it on the proviso that they'd get an opportunity to put on (indistinct).


VICE PRESIDENT HATCHER:  All right.  Seven days for the Commonwealth, and a further seven days for any response by any party.


MS GRUSCHKA:  Thank you, your Honour.


MR WARD:  Thank you your Honours.  Can I waive introduction and indicate what I intend to address this morning, and in starting, can I say that we do rely on our written submissions filed on 8 July.  I intend to break my oral submissions into four parts.  I intend to talk first of all to what I've asked you to do in these proceedings. I'll then deal with the question of jurisdiction which we include consideration of the Social Security Act issues raised by my learned friend yesterday.  Then I will take you to what has not changed since the December decision and lastly, I will make some general short comments in reply to my learned friend yesterday.  That's the path I intend to take.


Can I start with what we should do, subject to three matters, it's our submission that you should proceed as you proposed to do in December.  The only reason you might deviate from that course, in our submissions, is for one of three reasons.  If you became materially concerned that imposing the SWS on the sector is not going to be effectively supported by the Department, we would encourage you to abandon the SWS element and to further develop (indistinct).


I mean I'm going to repeat expectations that we're going to hear anything useful from the Department today about this, but I might be wrong.  So, on the current state of material, what conclusion should we draw from that.  I think, I'd have to be candid and say it's difficult.  It's very clear from the current state of the material that there's going to be – thinking of the economic question of the SWA, there's going to be a very practical challenge as to whether or not the Department in any reasonable period of time can actually come to the party.


So, it would be wrong for me to say though, that we don't think it could be done.  The best I could say based on the material that we've got at this stage, is that it would not be unreasonable to hold a very real reservation about their ability to deliver.  I couldn't take it any higher than that.  I think it would be mischievous of me try and suggest higher than that, but we do hold a very real reservation about the ability of the Department to fund it and also to practically deliver.


I mean there seem to be some assumptions that everyone would have to be assessed almost immediately – it couldn't happen.  If we have some transition period where over a number of years people would eventually have to be assessed and some transitional arrangement – if there's a matter of practicality, I think, in our written submissions.  We've taken you to the longevity of phasing-in an equal remuneration rule.  That was related to a quantum – not of the quantum the Bench is currently considering in terms of this, because I think there's a suggestion there's something in the order of eight years would be appropriate.  I suspect the question of the SWS could be built into a period of that time.


My clients then would still have some anxiety as to the likelihood of the Department continuing to fund through that process.  All I can say is that is a reservation.  I can't say we have any more to suggest that the Department won't fund, but the anxiety my client's members have is not ending up being tasked with the person who has to do the SWS assessment.  So, the highest I can put it at this stage is the material in front of you would suggest that you should have some concern, phasing will assist an element of that concern.  I wouldn't put it any higher than that; I certainly wouldn't put it any lower.


The second reason you might depart, you might have some jurisdictional anxiety about the SWS; I'm going to develop that.  Lastly, is just the operability of the SWS, and I'm going to deal with that when I talk about what the report says its findings were and its recommendations were about the modified SWS during the trial.  So, that's the supposed reservations we would state we would proceed as planned – you proceed as planned.


It's very clearly with the Fair Work Act differently to my learned friend, very clear.  With respect, they seem almost to read the Fair Work Act as if they were reading it through the prism of the Disability Discrimination Act.  We would ask you to read the Fair Work Act in the context of the architecture of the text before us. In that regard, I'd like to start that consideration by taking you to section 284.  Section 284 sets out the minimum wages objective and relevantly section 284 run a variety of this Commission to establish and maintain a safety net of fair minimum wages, taking into account (indistinct) in these terms:


Providing a comprehensive range of fair minimum wages to junior employees, employees for whom training arrangements apply and employees with a disability.


It should be uncontroversial that section 284 applies to these proceedings by force of 284(2).  We then are told in 284(3) what minimum award wages means and it is clear that they are the rates of minimum wages and modern awards, including wage rates for junior employees, employees with whom training arrangements apply and employees with a disability and it also then, not relevant for present purposes, goes on to include casual loadings and piece rates.


I just note for present purposes for reference to the phrase 'wage rates', I'll come back to that.  It troubles me a little bit in light of the question the presiding member asked yesterday about setting.  Then subsection (3) suggests dates are definable amounts, either a number of an amount which can be calculated that is provided (indistinct).  Can I develop that a little further in a moment, if I can, because your question raised yesterday, is one I think it needs addressing; it does need addressing.


I will start though by saying simply this about modern award minimum wages.  There's no special status given to any particular minimum wage in the Act.  The Act contemplates various categories of minimum wages.  One is not taken to be of a higher category than any other.  I think the phrase used was charismatic; it's not the case.  It's perhaps not surprising that the legislature specifically identified those three classes in 3A, because historically in awards, those classes have normally been paid less than other persons in the award.  So, the very nature of identifying those three classes would suggest that the legislature intended there to be classes of persons paid less than other persons.


We then come to 284(4) and we are provided with this notion of seeking and varying.  The section is in these terms:


Setting modern award minimum wages is the initial setting if one or more new modern award minimum wages in a modern award over the award as originally made, for a rate of variation of the award.


I think the troubling element about that is the notion of just setting something and the notion in 284(3) that we're dealing with wage rates, does suggest that to actually set a rate it needs to be clearly discerned from the award instrument itself rather than emerging from a process undertaken by somebody outside of the instrument.  It could be reasonably said with the SWS process doesn't set minimum rates; it's a process that's been adopted to arrive at an outcome, but we're not confident that it necessarily is doing what 284 fully intended in the first place.


I'm just going to pause there and divert to a question, because a member yesterday about the old approach to setting and I don't have copies of this and I don't intend to take – I apologise I don't have copies of this; I only dug this out this morning.  If I can just say this, I think his Honour the presiding member referred to the first award principle.  It's conveniently set out in the National Wage Case of October 1991 at print K0300.  It's copies (indistinct) to be made.  It was a very small wage fixation principle in its drafting and as always, is difficult to find.  It used to be called the first award extension to existing award.  It's in these terms:


In the making of a first award the (indistinct) principle shall apply, i.e., prima facie, the main consideration exists in relation to conditions.


There's an extension of an existing award to new work or to award free work.  The rates applicable to such work will be assessed by reference to the value of the work covered by the award.


There's also some very old historical authorities on the notion of adopting market rates and probably the most relevant authority, the most convenient one is Re Crown Employees (Audit Officers Auditor-General's Department) Award [1962] AR (NSW) 184.  The general historical notion was that you adopted what was there prima facie, although you acknowledge that some work value consideration might apply.


The reason why the second thing is a problem is if you read what varying means.  Varying is in these terms.  Varying modern award minimum wages, means you're varying a current rate, as one of the award minimum wages.  There seems to be a presumption that when you're sacked you identify a rate and then you're varying the rate.  People are challenged with the SWS's.  I don't think the SWS on any proper understanding sets a rate.  It's simply a process that creates an outcome.  It could set a thousand rates all over the place.  So, you can't actually go to the instrument and find the rate.  Now that's troubling in a variety of ways.  It also might be relevant for what you're actually doing.  Obviously the question is you need to set a rate.  In our view A and B has set the rate.


You perhaps haven't set that rate by regard to what is happening in industry, but it's our understanding you set that rate reflecting on what's happening in the industry and also consider work value, and in terms of how you arrive at A and B that seems to be entirely consistent with what's intended by statute in terms of setting the rate.  But importantly the very architecture of the Act contemplates that there will be this variety, this suite of minimum rates, this suite.  That is perhaps not surprisingly then picked up in section 139, which deals with those things which may as a matter of discretion be included in the modern award, and perhaps not surprisingly 139(1)(a) goes to the heart of it in these terms:


A modern award may include terms about any of the following matters:  minimum wages (including wage rates for junior employees, employees with a disability and employees to whom training arrangements apply, and - - -


And then it goes on.  So the very notion that setting minimum wages for people with a disability is some sort of strange and dangerous thing to be guarded against it just doesn't arise from an understanding of the architecture of the Act.  It's an accepted part of what modern awards should consider, and subject to the exercise of discretion under 139, which we will come to, it's part and parcel of the architecture of the system.


With respect, subject to the persons being considered falling within the definition in section 12 of an employee with a disability, which I am going to spend some time on, we say section 153 needs to be read in the context of the architecture that I've just described.  That's how it needs to be read, and if you do that you end up, with respect, with a relatively simple understanding of how it works, which is pretty straightforward.  One doesn't have to go to the very complex and quite tortured approach that my learned friend went to yesterday to advocate for his position.


Now, I want to turn to section 12 first because, with respect, we have a very different understanding of the Social Security Act to my learned friend, and I want to take the Commission through them.


COMMISSIONER CAMBRIDGE:  Can I just ask something before we move away to 284.  Don't we though in our proposition set a minimum that can apply by the SWS, we set that base.


MR WARD:  With respect, I don't think if you just use the SWS you do, because you're not setting a rate.


COMMISSIONER CAMBRIDGE:  It's setting a rate at $3 and something or whatever it is.


MR WARD:  Sorry, your Honour.  In the sense that you set a minimum rate, I am prepared to accept that as a proposition, in the sense that the SWS – you couldn't claim that the SWS then sets rates for the people, other minimum rates other than the bare minimal.  I accept that you advance the proposition and said you can't go below this number no matter what, I accept that, but let's say that the SWS comes up with a different number, that can't be said to be a rate set for the purposes of 284.  That can't be.  A and B can be, that's unambiguous.


I am not suggesting that you can't have A and B in the SWS, I think you possibly could, because it's all hinging on A and B, but it's clear, in our submission, that setting the rate A and B ambiguously is within the contemplation of what the Act thinks of that, (indistinct) unambiguously, absolutely.


Now, I need to turn to the Social Security Act because it's important, and I might just start with section 12 of the Fair Work Act.  It seems to be fairly clear that the definition of an employee with a disability is somebody who qualifies for Disability Support Pension and that takes us into section 94 and 95 of the Social Security Act.


VICE PRESIDENT HATCHER:  On one view why do we need to look further, that is if employees in receipt of the Disability Support Pension why can't we just proceed in the assumption that they qualify?


MR WARD:  You could do, your Honour.  I just wanted to explain to you how they actually qualify, actually qualify differently to how my friend said yesterday they qualify.  I just want to just make sure that wasn't going to be a confusion in the Bench's mind.  Now, I don't know if the material of section 94 has been put on before.  I know we hadn't put it on.  I do have copies if that helps.


VICE PRESIDENT HATCHER:  It's in the AD at tab 5, wasn't it?


MR WARD:  If it is then if I don't mention – now, if I take you to section 94 a lot seems to have been made yesterday about section 94(1)(c)(i) and (ii), and in fairness I might not have completely understood the argument, but I will have a genuine go at it.  I think the general proposition yesterday was that my client's members can't rely on section 94(1)(c)(i) and a lot was made of the definition of work, and I think the argument yesterday was therefore for you to be a person with a disability you can only rely on section 94(1)(c)(ii), and hey presto that means you supported wage system.  With the utmost respect to my learned friend that's wrong, and I will explain why it's wrong in the statute, but I will also explain why it would have to be wrong practically anyway in a minute.


The important definition is in fact the definition of continuing inability to work, and that's contained in 94(2), and it sets out essentially intriguingly a series of classes of people who fall into the definition of continuing inability to work.  I notice that it does adopt the notion of the secretary being satisfied.  I will come to that.  The Department might need to help us on a point I make in due course.


You will note that there is a class there for persons with certain levels of impairment in (2)(aa), and importantly I will just ask you to focus there on the proposition that:


The starter who has had an opportunity to participate in a program of support; the person has actively participated in a program of support within the meaning of section 3C, and the program of support was wholly or partly funded by the Commonwealth.


We then go to (a):


In all cases the impairment is of itself sufficient to prevent the person from doing any work.


I accept the proposition of work meant, but importantly independently of a program of support for the next two years.  I won't read (b) it picks up the same (indistinct).  The point I make is this, is that the notion of work is relevant to consider when it's work independently of a program of support.  Program of support is itself a defined term, and ADE is taken to constitute a program of support.  So the proposition is simply this, that a person at an ADE qualified for the Disability Support Pension on the basis that they fall into 94(1)(c)(i) in that they are unable, prevented from doing any work independently of a program of support.


VICE PRESIDENT HATCHER:  Where do we find that definition?


MR WARD:  This is why I said you might need the Department.  Program of support is set out in (5).  It doesn't say implied with an ADE by definition is a program of support, and if I take you to the Department's website it said that, but it might be that you will require the Department to assist you.  I think what's technically happened is that the secretary has most likely formed an in globo view that if you are working in an ADE that constitutes a program of support.  That's my sense of it, but the Department might need to assist you with that.


Of course you can understand practically why that probably follows, and that is this; if I'm wrong and my learned friend is right all the people who work in ADEs who don't use the SWS aren't getting the support pension (audio malfunction), and the only way they get it is through – my understanding of how the Social Security Act works.


VICE PRESIDENT HATCHER:  I thought the point was that currently where there's only effectively Grade 2 and above that in ADEs employees can't work independently at that level, but if we introduce new pay rates for A and B it raises the possibility that in fact employees can work independently at A and B being the (indistinct).


MR WARD:  I don't think there's any evidence to suggest at this stage that that would be the case.  I think the evidence was very clear reading from the witnesses called in the last two days, that these employees still require ongoing support.


VICE PRESIDENT HATCHER:  I mean on one view in any event it's a matter for the secretary of the Department whether they're satisfied or not.  If they're satisfied they fall within the definition.  If the secretary is not satisfied they don't.


MR WARD:  And hence I say it might be something the Department might assist us with.  I just wanted to indicate for the Bench that it's not as simple as my learned friend was trying to suggest in relation to his argument yesterday.


VICE PRESIDENT HATCHER:  I mean hopefully if the implementation of the proposed Grades A and B would lead to the possibility that the secretary of the Department might not be satisfied that person continues to be eligible for the DSP able to tell us.


MR WARD:  Absolutely.  Yes.  Well, one would have hoped.


VICE PRESIDENT HATCHER:  That is they'd be screaming (audio malfunction).  Maybe they're ready to bank a huge budget cut.


MR WARD:  That might be why they're not telling us, I don't know.  One would have assumed that the Department would have done that, yes, and hence I say that the Department might be able to throw some light on that to assist the Full Bench.


I am going to come to 153 in a minute, but I just want to remind the Bench, with respect, it's discharging its (indistinct) for duty under section 156.  It's quite sad to see that section go.  It's conducting a four yearly review.  Our written submissions have explained how the Commission should go about that evaluative process, and the Commission is entitled to vary modern award rates of pay based on the value reasons arising from 156(3).


Again that sort of gives the question – that raises the question of are the rates already set.  If they are set and you're varying them, if they're not already set how do you go about setting them.  Certainly if you formed a view that they're already set then you certainly are not varying them in accordance with 156(3), and that obviously brings into vogue the word 'value considerations', or as the statute describes them the word 'value reasons' in 156(4), which you have done anyway.  You in your December decision considered at great length the notion of the value of the work, and I want to return to the value of the work before I finish today.


Of course that evaluative exercise, and I don't think there's any controversy, is conditioned by section 134 which dispenses (indistinct) considered extensively, and that exercise is (indistinct) conditioned by section 138, which is this notion of only going as far as is needed to set the minimum safety net.


That brings us to section 153, which we read with a much greater sense of comfort than the other side, simply because we read it in the context of the architecture of 284.  153(1) is since the early 1990s this Commission and its predecessor Commission have had provisions of that type either in statute or in awards.  Most awards had anti-discrimination clauses inserted into them after the making of the Disability Discrimination Act in 1992.  They're still actually a feature of the New South Wales awards which some of the Bench would be familiar with.  So 153(1), yes, it is a prohibition.  It's not a particularly controversial prohibition.  I'm not sure that getting into a huge debate about direct and indirect discrimination helps too much but we just see it as a prohibition.


We don't read 153(3) either to be ambiguous, nor do we suggest it's necessarily beneficial.  We simply say that it is designed very clearly to permit what is intended to be done in section 284.  That is there would be absolutely not point writing 284, there would be no point writing 139 unless you had section 153(3).  There would just be no point.


It is permissive to allow the architecture of the Act to apply.  We don't get particularly stressed about the word, 'merely'.  They could have used the word, 'simply'.  They could have used the word, 'just', and what it's diverting your attention to is if the thing you're doing in the award is simply setting minimum rates of pay for employees with a disability or a class of employees, it's okay because that's what 284 tells you you should do and that's what 139 said you had the discretion to do.  But we don't have any particular special view about what that phrase means in the context of this section and the Act.


VICE PRESIDENT HATCHER:  On one view, 'merely', simply means that we can set fair minimum wages for employees with a disability provided we don't discriminate in some other fashion.  So, for example, we don't have separate rates for female and male employees.


MR WARD:  That would be a very, very good example, that you're going beyond, 'simply', or the, 'just', you're going into some other territory and you shouldn't stray beyond.  Absolutely.


VICE PRESIDENT HATCHER:  Just so I understand that submission, you say the purpose of 153(3) is to ensure that 153(1) doesn't frustrate the task of setting modern award minimum wages in section 284(3).


MR WARD:  In a nutshell, yes, your Honour, yes, yes.  So we ask you to read this in the context of this Act, not some other Act.  Again, we're not troubled by 153(3)(b) either.  We think those words are very, very clear and we struggle to think it could be said otherwise.  You can do this, either referring to all employees with disability or a class.  And class should be given its very ordinary meaning.


It's simply a reference to a group with a similar quality that in this case you've identified a class of people in the context of ADEs or anything else.  You can use whatever descriptors you want to identify the class.  The important thing is it's clear who they are.  We don't understand why anybody would be troubled by that notion, troubled at all, we just don't get it.


So that's how we say you should read it.  That's how we would encourage you to read it.  We would say please don't read words into it and don't pick words up out of the Disability Discrimination Act or some treaty and all of a sudden start reading them into it.  We just don't see the warrant for that in the architecture of this legislation.  It's just not necessary.


I do want to deal briefly with a couple of more points on that and I just want to talk about the international treaty issue just very briefly and then I want to talk about section 94 of the Discrimination Action.  I'll withdraw that.  I want to avoid getting into too detailed an argument about international treaties but I would just make a couple of very simple points.


Number one is just be conscious that the Fair Work Act is not enacted to give effect to any international treaty.  So one just needs to have that in mind because where you create an Act that gives effect to an international treaty obligation that obviously takes you down a particular path and that path isn't here today.


To the extent that my learned friend wants to rely on anything in a treaty on the ground of ambiguity which would arise from the Interpretations Act as extrinsic material, we say there is no ambiguity so that is an arid path to take.  We do accept, though, that as a matter of general principle you shouldn't do anything that repugnant to an international treaty.  We accept that as a genuine proposition.


We don't see anything that you're doing in any sense as being repugnant to the convention on the rights of persons with disabilities and I want to just make one point on that just to highlight it, that article 27 of the Convention adopts some phrasing which includes, this is about giving people opportunity, including equal opportunities and equal remuneration for work of equal value.


The very fact that this Commission has gone to great lengths to indicate that its process it has adopted is predicated on the notion of work value where there is the establishment of grades A and B, seems to us to be completely comfortable and certainly not repugnant with the convention.


But with respect to my learned friend and the good Professor McCallum, one shouldn't be trying to insert words from a convention into the words of the Fair Work Act.  The Disability Discrimination Act, section 94 has been a consideration, I think if not explicitly then implicitly in this Commission – sorry, I withdraw that.  Forty-seven.  Section 47.  It's been a consideration of this Commission now for some time.


I am seriously troubled by how my learned friend without hesitation adds a word every time he references section 47 and he said it many times yesterday.  The language of section 47 is in section 47(1)(c)(iv) by reference to the capacity of the person.  Every time my learned friend talked about it yesterday he inserted the word, 'productive capacity', and, with respect, the statute doesn't say that and, with respect, a capacity of a person is not simply their ability in a moment to do something fast.


That is a very undignified and inappropriate notion.  The capacity of a person is their capacity to gain knowledge, their capacity to hold knowledge, their capacity to apply knowledge, their capacity to work independently, their capacity to work with other people.  It's a much broader concept than simply output.  I'm not suggesting output doesn't come into the notion of capacity but to simply put that capacity is purely about output is misconceived.


I don't think section 47 governs you in discharging your obligations under section 156 but we're obviously mindful to it and in our view when we read the December decision it seems to us that you were very mindful of it because throughout that decision you indicate that in formulating the language in A and B, you do actually indicate that you have regard to the capacity of the people performing the work.


So it seems to us that that has been very much in your thinking as you developed your preliminary views in your recent decision.  There's nothing further, that's all I intend to say on jurisdiction.  If the Commission pleases I'll now turn to merit.


The first thing I want to say, and I appreciate this is possibly self-criticism as well, the Commission was involved in a very substantive hearing prior to the December decision and respectfully, and I'm happy to take criticism myself in this, the Commission should be very cautious about the limited amount of evidence heard in the last couple of days disturbing that very substantial hearing, very careful indeed and I'll come to the evidence of the last couple of days shortly.


I want to talk firstly about the things that in our mind don't appear to have changed at all.  Be that some sort of consequential, circumstantial change or changed on the basis of what you've heard in the last two days.  The first one is, and this is in our written submission, the Commission at paragraphs 245 to 253 of the December decision made a number of findings about the industry and it made four fairly important findings.


It's our submission that nothing has disturbed those findings which were quite foundational in the Commission's reasoning.  I won't read it but we summarise those findings at paragraph 8 of our outline of submission of 8 July 2022.  Nothing in the last three days has challenged the findings about the sector.


The December decision also made a finding that it was inappropriate to adopt the SWS as a single mandatory wage assessment tool and it formed the view that to do so would offend the Modern Awards' objective and that conclusion is well-articulated at paragraph 348.  The Commission at 348 stated:


The fundamental difficulty with the SWS –


and I'll talk about the modified SWS shortly.


The fundamental difficulty with the SWS, as was identified by a large number of witnesses, is that it assesses wages on the basis of productivity only and otherwise assumes that the job being performed by the disabled person is one to which the relevant award classification was intended to apply and set the remuneration for.  The assumption is flawed.


As we have earlier set out, it is an essential feature of ADEs that rather than simply recruiting the subject person to perform jobs which pre-exist in the labour market and might otherwise be performed by non-disabled persons, ADEs create and tailor jobs specifically for the purpose of providing work for disabled persons which they are capable of doing.


You give then an example and you form the basis that it's then appropriate to adopt the SWS as the single tool.  We don't believe that there has been anything put of any probative value that would suggest you were wrong in making that conclusion.  Whatever else you might do, it would be improper to now adopt as a matter of merit the view that the SWS is an appropriate tool and that is amplified by a trouble that the ARTD report identified in relation to the modified SWS and there are still many, many troubles with it and I just want to go to those if I can.


The ARTD report made quite a large number of recommendations.  Interestingly enough, it made more recommendations about the modified SWS than anything else individually.  It made 13 recommendations arising from its concerns about the modified SWS as opposed to three recommendations about A and B.  At page 126 it sets out those concerns.


VICE PRESIDENT HATCHER:  Just hold on a second, Mr Ward.


MR WARD:  Sorry.




MR WARD:  Page 126 it sets out recommendations about the modified SWS and I don't intend to read them but I would ask you, please, to give some regard to them because they're not immaterial.  They concern its application, they concern the (indistinct) application.  They go to issues of methodology and approach and, with respect, many of the anxieties which the Commission developed about the SWS are replicated in some fashion in the recommendations of the ARTD report here, having modified SWS.


VICE PRESIDENT HATCHER:  I notice these recommendations are fairly micro, as it were.  That is, we need to bear in mind that the SWS doesn't belong to us.


MR WARD:  No, no.


VICE PRESIDENT HATCHER:  And I'm not sure that - - -


MR WARD:  Sorry, sorry, I'm not suggesting, your Honour, that you're going to ring the DP.




MR WARD:  I'm just putting this forward in this sense, I apologise if that was the case, I accept many of these are a matter for the Department.  But the idea that - - -


VICE PRESIDENT HATCHER:  Before we go on, perhaps the Department could also get instructions about whatever it intends in respect of the SWS to implement these recommendations.


MR WARD:  The reason why I go to this is the idea, I think your Honour, the Presiding Member, asked my learned friend yesterday, you know, what's changed and I think the answer was, well, you know, you've modified it and it's all good now.  Well, it's not.  There's still quite a lot of work to do with it, to make it operable for use in the ADEs, even in your respectfully modified form.


VICE PRESIDENT HATCHER:  It was modified to make it work effectively in conjunction with grades A and B.  The modifications were never (indistinct) - - -


MR WARD:  Yes, yes and - - -


VICE PRESIDENT HATCHER:  - - - with grades A and B.


MR WARD:  Yes.  No, I understand that.  I simply go to this because there's work to be done still to make it effectively operate even with grades A and B.  I'll come back to grades A and B a little later.  Now, very importantly, nothing that has fallen in the last few days should move the Commission to disturb the view it expressed at paragraph 248 of its December decision.  I won't read that at length.  We deal with 248 and following in our written submissions but this is this notion that ADEs offload in a different paradigm to how they're structured.


We do see that obviously as a very important finding that the Commission made back in December.  Nothing's disturbed that and this is this notion that disaggregation of whole jobs into smaller jobs.  Now, obviously the best witnesses my opponents could find, Mr Greer and Ms Smith.  The work they described makes it very clear that the findings in 248 were valid then and valid now.


Mr Greer talked about how people sit at a table and somebody puts certain caps on a little silhouette and they put that in a bag and the bag then goes in the box for somebody else, and that's their job.  And we're not undermining the dignity that that brings that individual because that individual obviously gets dignity through their work but that clearly is on all fours with 248.


The notion of the pigs' ears being put in a bag and that's all the job is, again I'm not undermining the dignity of that job but that's on all fours with 248.  While I come to Mr Grzentic's evidence which really is highly dubious as to its probative value but even his example of the shaving can and the person simply picking up the brush and putting it in the box and moving the box to somebody else, that's all on fours with 248.


Ms Dulac, I think, attempted to work hard to recover that a little bit and talked about somebody shredding and I said to her in cross-examination, 'So they set the speed of the shredder?'  She said, 'Yes, that's their job.'  So there's been an attempt by my friends to suggest that your finding in 248 was flawed.  To the contrary, to the extent that the evidence is put on in these proceedings, it's affirmed it in the strongest terms.


There may well be people inside an ADE who have considerably less disability, who can function at a relatively higher level, we understand that.  But the notion that the primary process of work organisation, to suggest that that is not in accordance with 248, that would be wrong.  I will cover off on (indistinct) in due course.


In relation to Mr Grzentic's evidence, I'm just going to say this.  I don't think in my career I've ever met a witness who was more obfuscating, more attempting to avoid answering any question.  I think the only question he answered with any (indistinct) Frank Leland.


I was normally cross-examining Mr Leland in different circumstances to you, your Honour.  I suspect you might have been involved in cross-examining him in union rules cases, he might have been far more – he seemed to be happy with (indistinct).  Rest his soul.


His evidence really should be given very little weight and, importantly, two things.  He has a very strong vested interest in the SWS.  It's really at the heart of his business model.


VICE PRESIDENT HATCHER:  No, that can't be right because even if we implement our proposal, there will be a lot of SWS - - -


MR WARD:  Your Honour, I agree with that.  I agree with that but it just intrigues me that he's obviously an advocate for the SWS only.  His evidence should be given very little weight.  As to Ms Dulac, obviously far less argumentative but she has very limited scope.  A bit like Mr Grzentic, makes massive generalisations about the industry, massive generalisations about the industry, without any foundation.


Ms Dulac's preparedness to talk about commercial contracts seems at best to concern when she worked in an ADE in the 1990s and yet she wants to talk about what's happening in commercial contracts at large across the industry and we would ask the Commission to approach both of their evidence with great care.  In particular, their attempt to generalise their evidence across the totality of the industry in the modern era.


The next point I want to make is this.  We don't believe there's been any evidence that's been put on in the last three days that in any sense undermines the architecture of grades A and B.  It just wasn't brought.  Nothing to suggest that you should move away from those in concept in any sense.


There's, very importantly, been no evidence brought in the last three days that suggests your valuation of the work was wrong.  It has to be the case that if all your job is, is to place, with respect, a shaving brush in a box and move it to somebody, if that is all your job is, or you're sitting at the shredder placing shredding into a shredder, it must follow that that, by definition, brings with it a value demonstrably less than would be normally the case under the Modern Awards.


VICE PRESIDENT HATCHER:  Mr Ward, are you going to come to the provisional amounts for the grades and life of the cost implications?


MR WARD:  Yes, I am, your Honour.  Yes, I am.  Sorry, your Honour, I'll speed up.


VICE PRESIDENT HATCHER:  No, no, there's no hurry.


MR WARD:  Yes.  Let me move my submissions around.  I might deal with that now if it's on the presiding member's mind.


VICE PRESIDENT HATCHER:  I mean, I'm speaking for myself but let me cut to the chase.  You won't find anything in the 2019 decision which indicated that we intended to oppose the 50 per cent wage cost increase on ADEs, so that begs the question what should we do in the light of the report?


MR WARD:  I think, let me answer that and in answering it can I just perhaps administratively assist your Honour.  Your Honour seemed to be searching for something, some numbers and some calculations yesterday about what the actual increase was and can I just take your Honour to the report where some of that material is, to start that journey.  If I could ask you to go to table A36?


VICE PRESIDENT HATCHER:  What's the page number?


MR WARD:  Yes, I knew I was going to be asked that.  Bear with me, your Honour.  It's page 160.  The Commission will see at page 160 at the bottom, table 836, I think this is where, your Honour, the presiding member, probably had the number from.  You will see current wage of support employee descriptive statistics, a mean of 6.51 which I suspect is the number your Honour, the presiding member, had in his mind.


A median of 5.61, standard deviation minimum and then maximum and I think you were probably thinking of the 6.51.  The average – just bear with me – the average increase, I knew I would do this the wrong way.  I've jumped to the report.  Bear with me.  The average increase in narrative text is set out on page 50 at 3.4.1, 'Overall Wage Outcomes', and it's in these terms:


The (indistinct) example for supported employees in the trial, the average hourly wage outcome was 9.77.


Minimum was 3.59.  The maximum was 22.06.  It goes on and bear with me, I'm trying to find the increase.  The increase is - - -


VICE PRESIDENT HATCHER:  I think it's in page 52, paragraph 3.4.2.


MR WARD:  Yes, it is, your Honour.  It's set out in 3.4.2 at page 52.  I think the average increase from the trial is $3.26 per hour and I suspect what your Honour was doing mathematically was comparing the 3.26 which was the increase to the initial mean rate of 6.51 and that gets us into that 50 per cent mark.  I think that's the best evidence you're going to have to assist you.  My friend can attack the report all he wishes but it certainly is the best evidence you have.


As to economic consequence, again it's not perfect but it's the best you've got, you would really need to go to page 77 and I wont deal with this in great detail but page 77 in table 20 identifies the general views about economic consequence and this is developed then from the following pages and essentially it identifies a likely cost impost in the order of 74 to 77 million dollars on the industry.


It identifies various ADEs at high risk and later on the report describes what that means and, with respect, high risk seems to mean they might shut, they're under serious financial difficulty, and then they have another class which is higher (indistinct), which seems to be that they're on the cusp.


The point we make is simply this, that the Tribunal is contemplating placing a very material cost increase on the sector.  It's very clear from the evidence that was taken in December that the sector is very constrained in its ability to recover through pricing.  That is not a work value consideration, it's an implementation consideration, and the submission we have made to the Commission is that the increases should be introduced over a period of, I think it's eight years.


VICE PRESIDENT HATCHER:  Or the alternative one might be to make some adjustment to the amount and then see what happens.


MR WARD:  Sorry, I was going to come to that in due course.  The other option would be to proffer alternative wages that is perhaps a lower wage for a period of time and then, as it were, see what happens on the basis that one could return and deal with it at that stage.  That certainly seems to be available too.  There's no doubt about that.


VICE PRESIDENT HATCHER:  But does the report, and I can't find it, does the report give any indication about whether, in particular elements of the provisional view, were driving the cost increase?


MR WARD:  No, your Honour.  I don't think it would be fair, on my reading and Mr Christodoulou has read it far more times than I have - I don't think it would be fair to say that.  I don't think it, in any sense, dissects the consequence of A and B, versus the consequence of SWS.  I haven't read that in it, no.


VICE PRESIDENT HATCHER:  One element of the proposal was not just A and B, but to increase the floor to $3.50 an hour.


MR WARD:  Yes, your Honour.


VICE PRESIDENT HATCHER:  One thought that has occurred to me is whether there is any good basis to have a floor which is different from the floor in the second special national minimum wage, which I think equates to $2.50 an hour.  So if it's $95 a week - - -


MR WARD:  What I would say is that it was clear that the floor had a material cost in position for some, and if the Commission in exercising its discretion was minded to adjust the floor, there's no doubt that that is going to give some relief.  There's no doubt about that, particularly at that bottom end, particularly down there..


So, I can't immediately do some maths and tell you the economic consequence of that but there was quite a conversation about the impact of the floor in that section 3.4.  I'd struggle in the time available to me to find it.  But yes, that clearly would be one way that Commission could ameliorate the economic impact without necessarily unduly affecting the architectural fairness of the proposition.


It goes without saying that I think it follows that if you abandon A and B and you move to the SWS, everything I have said just sort of takes steroids and runs away with itself.  In our submission that would really be offensive on two grounds.  One, and we'll come to this, the SWS has nothing to do with work value, nothing at all.


Secondly, there's no doubt that effectively imposing something on the sector that has nothing to do with work value potentially could economically destroy the sector and is fundamentally inconsistent with the Modern Award's objective around social inclusion and so forth.


I do want to just briefly touch on A and B.  It would be improper not to do that.  The report makes some recommendations about A and B.  Those are contained at page 127.  The consultants obviously had considerably less concerns about A and B than it did to modify SWS, but anyway.


These are recommendations the Commission can have some considerations to if it wants to, respect, tinker with A and B.  I would say that they're uncontroversial in this sense.  For a sector that's not used to simply classifying people, to all of a sudden ask them to be classified, it's not surprising that not everybody found it easy to do.


We have written in our submissions how one should look at the evidence, the qualitative subjective evidence during the trial.  There are far more people who are comfortable applying both A and B than were uncomfortable.  Mr Christodoulou and Mr Dauncey did it in these proceedings, and my learned friend will obviously say that's of no value, with respect to him.  He certainly could have interrogated them in cross-examination if he was concerned about how they arrived at their position.


The point is this, is that a lot of what is recommended here is really what you would expect to see in introducing something new.  There is no doubt that some more detailed guidance might help ADEs to implement A and B, and obviously in the normal course of events they would have access to their representative organisations, such as ours or the NDS and they'll be able to help them with that.


I'm not entirely sure what clarification of the gateway requirements means.


VICE PRESIDENT HATCHER:  I was going to raise that with you, Mr Ward.  Did you have with you the actual structure that was attached to the March 2020 decision which was filed?


MR WARD:  It might be handed to me shortly, your Honour, just if you'd give me a moment.  I think I have it in front of me now.


VICE PRESIDENT HATCHER:  So you'll see the, I assume what's referred to as the 'gateway requirements', in the report are those contained in B.1.  First of all, it seems to me on reflection that B1.1(a) is probably superfluous because we've already said that these apply to employees with a disability, and as long as that has the definition that carries in the Act, it seems to me that doesn't require any further elucidation.


In respect of little (b), having regard to what the report says and some of the evidence we've heard this week, I'm a little concerned that the way in which it's currently drafted might overemphasise completely individualised tailing, as distinct from a more generalised adjustment of a job so that can be done by a class of employees.


MR WARD:  Yes.


VICE PRESIDENT HATCHER:  So, for example, on Mr Greer's evidence it wasn't suggested that the work (indistinct) was designed to fit the needs of one particular employee, but that it was designed in a way that a class of employees with a certain level of disability might be able to do it.  So I'm just wondering whether there's some modification in the drafting we can make to accommodate that.


MR WARD:  Yes.  We haven't proposed the actual modification but what we did say in our submissions is that we agree with that.  It seems to us that the nature of the language and examples arising from paragraph 248 in your decision in December, seemed to provide greater clarity to the notion your Honour is suggesting, necessarily the words that were in the actual draft.


And you're right, your Honour.  The decision really talks about the decomposition of what might have been a job, as opposed to the personalisation of the individual.  I think it would assist people greatly in operability if we could adopt some language more out of 240(a) in the said decision rather than the language that's there.


VICE PRESIDENT HATCHER:  Mr Ward, I would invite you and any other party to file a draft of that to assist us if you want to.


MR WARD:  Yes, your Honour, we will take up that opportunity and we thank the Bench for (indistinct).


VICE PRESIDENT HATCHER:  So going back to the report, in terms of case studies or examples by industries or roles, again, I suspect if we were minded to do that all the industry players would be in a better position to assist in that regard than ourselves acting on our own initiative, so - - -


MR WARD:  Yes, your Honour, we'd be quite happy to provide that, as well.


VICE PRESIDENT HATCHER:  As to the last two items, I mean, they're issues that on any classification structure it doesn't seem to me that that's unusual.


MR WARD:  I was about to say with some, hopefully, respectful voice that that's a common feature in business dealing with all modern awards.  It's nothing particularly germane for this.  My client's organisations probably wouldn't exist if that wasn't the feature that business had to deal with.


VICE PRESIDENT HATCHER:  The award already has a higher duties provision in clause 15.4.  Is there any reason why that provision in its current terms wouldn't be perfectly adaptable to levels A and B?


MR WARD:  I think we had proposed in our submission, something on that.  Can I, without necessarily trying to side step it, could I suggest that Mr Christodoulou might take that matter up in a little bit more detail from a practical perspective when he makes his submission.




MR WARD:  I just want to deal with just a few short matters then I'll make some comments in reply, very quickly.  I think there has been an attempt to pivot to this proposition by my opponents, and that is this notion that, well, these are just like any other commercial business, just like any other commercial business.


But they clearly are not.  The evidence of the last three days affirm that.  Ms Dulac described them as unique.  I think even Ms Dulac and Mr Grzentic accept that they are, first and foremost, purpose based to provide employment opportunities and they build things around that.  I put to those witnesses a variety of propositions about what constitutes a commercial business.


I think it's very clear that they are not commercial businesses in the sense that I think it's trying to be posited.  That's not to say that they don't try and stay viable.  But they do not have the essential features of a typical commercial enterprise and it would be a distraction for the Commission to think that is the case.


I do want to indicate that we do believe that obviously the Commonwealth, the department has a role to continue to play.  We think it is important that the department provide further submissions on the operability of actually applying the SWS, its funding of that, its ability to upscale its capacity.  It's set something already but we would perhaps, through the Bench, like to say a little more on that issue, and yes, they could say some more on the recommendations in the report about modifying the SWS.


I want to just make a few very, very brief comments in specific reply if I can.  A lot has been made by my learned friend about C10.  I'm getting old now.  I was around when it started.  If the Bench formed the view that it was of some assistance to identify a relativity for grades A and B to the C10 framework then you're free to do that.  You don't have any jurisdictional requirement to do that.


The C10 framework has operated as a useful tool that creates some level of alignment and orderliness in the jurisdiction.  I don't think that the pharmacy decision or the teachers decision could in any sense be said to suggest it is a mandatory rule that must be followed.  That is not the case.


It certainly doesn't have any legislative power or legislative role but it's something you can reflect on and if you think setting a relativity would be of some use, then we'd invite you to do so.


There was a submission, with respect to my learned friend, talking about dignity, and with respect, there could not be anything less dignified than requiring an employee to undertake a task‑based speed test.


It is the least dignifying thing you could do, and the fact that people with disability are required to do that and people without a disability are not, I think, with respect, one has to be careful of understanding where the dignity lies.  So we'd ask the Commission to be very mindful of to the extent that there was some emphasis placed on the role of dignity for the individual arising from the conventions, the SWS is the antithesis of dignity.


Some submissions were made on social inclusion.  There's no doubt that the ADE is the essence of social inclusion, in that it provides an alternative for people who want it or need it, and absent that alternative, as was the case in the UK experience which the Commission considered in December, many will simply sit at home.  So ADEs, in our respectful submission, to the extent that social inclusion is relevant to section 134, (indistinct) social inclusion.


I do agree with my learned friend, in that the DSP - the pension itself is not a work value consideration, but clearly it's a 134 consideration, and it should be taken into account in the Commission's considerations under section 134, and our reading of the December decision suggests that they were.


I do agree with my learned friend viability is not a work value issue, it's an implementation issue, and we've addressed that today and also in our written submissions.


If the Commission was moved by the proposition from my learned friend that the December decision has signalled to the ADE community that change is coming, I would simply ask the Commission to consider this, just so it's not missed.  The last few years we've had a pandemic, and the idea that somehow, as my client's members traversed, the drama of that pandemic, that they were meant to be mindful of some great change coming, is, with respect, unfair.  My client's members' attentions have been unashamedly on surviving through the pandemic in many, many different ways.


The Commission itself in December said the SWS is not about work value.  The SWS is not about work value.  It has nothing to do with work value in and of itself.  It is simply a binary speed test at a point in time.


Work value is a much broader consideration, looks at the conditions under which work is performed, looks at skills, experience, the environment, and the Commission has, in our view, turned its mind to the notion of work value properly in its December decision.


Unless there's any questions arising, those are our submissions in the matter.  Thank you.


VICE PRESIDENT HATCHER:  Thank you.  Who's going to give the next submission?  Is it you, Ms Walsh?


MS WALSH:  Certainly, your Honour.  If that's what you want, yes.


VICE PRESIDENT HATCHER:  All right.  Well, just one ‑ ‑ ‑


MR WARD:  Sorry, can I just say this, your Honour?  We're comfortable with the higher duties clause currently in the award.


VICE PRESIDENT HATCHER:  Thank you.  All right.  Ms Walsh, we might take a morning tea adjournment.


MS WALSH:  All right.


VICE PRESIDENT HATCHER:  So we'll come back with you in about 15 minutes.


MS WALSH:  Thank you.

SHORT ADJOURNMENT                                                                   [11.20 AM]

RESUMED                                                                                             [11.42 AM]




MS WALSH:  Thank you, your Honour.  Would you like me to start with the draft determination?


VICE PRESIDENT HATCHER:  If you want to, yes.


MS WALSH:  I really don't intend to say much to it.  There's been an explanation and justification provided to all parties.  It's all pretty straightforward.  We're just asking for the insertion of four words, 'in a timely manner', in the determination draft that's been provided.


If anyone wishes me to enlarge on any of the information provided, I'm happy to do so, but I doubt that it's necessary.




MS WALSH:  So I just put it forward as a draft determination and then it ends up with your decision further down the track.  Thank you for that advice.


If I could just inject the voice of OVA employees and family advocates into these hearings.  Firstly, we sum up the findings of the 2019 Fair Work decision by relying on paragraphs 359, 360 and 361 and confirm that the loss of supported employment, with its social value component, would be calamitous.


Our members and other disabled persons gave uncontradicted evidence that the loss of supported employment would be felt in social isolation, boredom and financial detriment.  There is no evidence that increasing compensation would overcome that detriment.


The Fair Work Commission rejected the contention that the ADE model, referred to as segregated employment by some, should be transitioned to open employment.  The Fair Work Commission also found on the evidence that the experience of the UK in transitioning to open employment by closing their supported employment worksites left the vast majority of disabled persons in supported employment unemployed.


Secondly, the evidence in the Disability Royal Commission in April 22 entered into these hearings was to the following effect.  The transition to open employment in Australia, when tried, was extremely low, with a transition rate of only 0.35 per cent over 12 months.  That's from the transcript of 13 April 2022, the hearing of the Royal Commission Chair at T181, L10 and L11.


Also entered into evidence from the Disability Royal Commission, there are significant community and commercial barriers still to be overcome in transitioning to open employment.


Moving on to the evidence before the Fair Work Commission now, it does not suggest that any of the previous findings by the Fair Work Commission should not have been made or that the Disability Royal Commission evidence is wrong.


However, in the current review we have provided evidence from 14 disabled members which emphasises the critical need to retain work for disabled employees in ADEs, because it is their choice and because of the positive social outcomes.  Half of those members also related their experiences in open employment were not to their benefit and they returned to the ADEs.


There is no evidence from any party which changes the findings in your 2019 decision that the experience of the UK to transitioning to open employment was a disaster, and it was.


There is also no evidence that the UK should have handled or could have handled the transition differently to achieve perhaps a better result.


There is also no evidence that the findings of the Royal Commission, as admitted into evidence, are wrong.


There is no evidence by any party advocating open employment as the only option which seeks to justify the loss of 756 jobs previously held by disabled persons in Western Australia in ADEs.  What happened there is unjustifiable.


VICE PRESIDENT HATCHER:  Ms Walsh, I'm still a bit unclear as to what caused that closure that you've emphasised in your submissions.  Is it something to do with this case or some other reason?


MS WALSH:  I can only say - we don't speak for service providers.  Perhaps they can provide a better, I guess, understanding of what actually happened.  The public comment is that it was.  It was caused by the NDIS pricing and the projected future wage costs that might come out of these hearings.


I'm not in a position to make any other comment other than that.  The way it was handled was terrible, but again, yes, they, I gather, must have been very close to some sort of unsustainability, insolvency.  I don't know.


VICE PRESIDENT HATCHER:  Do you know what wage assessment tool they were using?


MS WALSH:  Greenacres, I think.  Was it Greenacres?  Yes, I think it was Greenacres.




MS WALSH:  So, sorry, I've lost my track.


VICE PRESIDENT HATCHER:  You were talking about the consequences for the loss of jobs.


MS WALSH:  (Indistinct).




MS WALSH:  Yes, was unjustifiable, and perhaps that goes also to the fact that the service provider possibly could have had handled it better.  No one expects supported employees to hear that their jobs are gone from the national media.  I don't know what happened there, but something obviously didn't go right.


There is no evidence from any party advocating for open employment that addresses the barriers to open employment as identified in the April 2022 hearings of the Royal Commission.


On the other hand, there is strong evidence from the employer groups that a transition to open employment is not viable.  The latest survey conducted in July 2022 by the social enterprise Jigsaw found that 50 per cent of Australian managers and HR professionals said they or their businesses had never hired a disabled worker or worked with a person with a disability, and nearly one in 10 added that they would not be doing so in the future.


There is no evidence tendered by the advocacy groups which contradicts the evidence from the employer groups in these or previous areas.


The most the advocates are able to raise is a set of philosophical submissions directed at criticising the employer group position, but those philosophical submissions ignore the real world challenges to the employer group position as evidenced in the 2019 determination as well as the real world challenges and lived experiences of ADE employees and their family, advocates and carers.


If I could inject, perhaps, a little bit of real world scenario and take you to a practical example, and I'm sure we've all experienced it in our professional lives, is when you turn up at work and without any prior notice the boss comes and says to you, 'By the way, this is John' or 'This is Sarah, and they're trainees and I want you to take them under your wing for the next couple of weeks until they know the ropes.'


Well, when you actually translate that to the real world challenges, you've got someone that you - you know, you take that task on hand, you do it kindly and you welcome it, because you're teaching somebody else, however it does mean with that person with a disability, who requires heavy support, then you have another person actually within that work environment and sometimes it's very difficult for employers.  I'm not condoning it;  all I'm saying, there are some real work issues here.


In my own circumstances where you are an executive manager and your job is to fill out time that you can pass onto your clients, then we used to call it unassigned time, in this industry it's called unproductive time but the same thing applies.  So it is difficult, it is the real world and that must make it very difficult for providers.


So if we think in those terms through the interim of the hearing, all philosophical arguments around affordable capacity of support, choice and the like, no ADE service provider can solve the big picture problems, the barriers.  If big business and corporate interests can't or won't try to solve them, then placing the blame at the feet of the ADE providers or in our instance blaming the parents for having low expectations about what their intelligently disabled family member can do, it's not an answer.


ADEs exist in the real world because the gaps have always been there.  People with a disability and their family advocates will always vote with our feet.  Close the gaps and then the philosophical arguments will have some chance of success without leaving a whole generation of marginalised people behind, because that's what's being proposed and - - -


VICE PRESIDENT HATCHER:  Ms Walsh, when you say being proposed, by who?


MS WALSH:  What we're looking at is we're looking at a business, businesses, that must now have productivity as their only outcome.  In the experience of some of the people with whom I have dealt, that will force businesses and again probably their service provider group is the best person to ask this in its entirety but it's been my experience that in order to become more commercially productive, that people with very high support needs who normally would have been welcomed and placed on (indistinct), they aren't productive enough to meet the commercial goals of some of those businesses.


VICE PRESIDENT HATCHER:  Ms Walsh, my question was a narrow one.  Whose proposal are you actually criticising?  I'm a bit confused.  Are you talking about the proposal in the 2019 decision?


MS WALSH:  No, no, we support that but I think we've always supported that.


VICE PRESIDENT HATCHER:  So what are you responding to.


MS WALSH:  But I think what is actually happening on the ground with or without that, the move to productivity has created commercial impacts on service providers from my association with it, and I feel that there is an ongoing generation of people who might not – I mean, the likes of my own son.  If he had to be employed on the basis of his productivity, he probably would never have worked in a workshop.


Whilst there are more options available now for ADE employees, many of the people who have lost their jobs in Western Australia probably will not end up in a work situation and that's why we need to ensure that whatever their wage outcome is that it is the best that the business can provide and that they need support from big business to try and arrange the community barriers and the commercial barriers that already are in evidence out there.


Service providers can't do that.  Families can't do that and, you know, with the best will in the world the Commission has actually proactively tried to solve some of that.  And the fact that you have the knowledge that our workers have a voice here is to the credit of the Fair Work Commission.  The Commonwealth government, no one, no one actually insisted that we be there but you.  So you've recognised, going back to 2003, that the workers actually need to be part of the solution because this is about their wages.  Does that answer your question now?




MS WALSH:  Or have I just thrown another curlier one in there?


VICE PRESIDENT HATCHER:  I mean, I think you're arguing with somebody.  I'm not sure who you're arguing with.


MS WALSH:  No, I'm not arguing.  I'm simply making a statement.




MS WALSH:  On behalf of and it's – and I guess we just need to be cautious because that's how it appears to be panning out.  So where are we again?  Okay.  There is no evidence handed down by any open employment advocate to any success in the regions.  Yesterday we listened to evidence that certainly pointed to some success in the sector with the SWS but Australia is a big country which faces the tyranny of distance.


We've heard in evidence of SWS successes in a few ADEs.  Queensland was one which was mentioned with successes with a service provider in Brisbane, and the other cited case was in Cairns.  But what happens to all of the geographical area between Brisbane and Cairns?  There's nothing to indicate any successes there.


The same thing happened with South Australia;  and Western Australia and Northern Territory didn't even get a look-in, didn't even get a mention.  So what we're dealing here is a national issue.  It's not just metro and urban.  None of the evidence before the Fair Work Commission now addresses the core finding in Nathan v (indistinct) [2008] FCR 1, paragraph 33, pages 7 to 9.  That is that:


ADEs must have a dual core focus of supported employment and the operation of a viable business.


This represents two very competing objectives given that ADE disabled employees are recipients of the DSP and that's a requirement of their job in the ADE.  There's been no attempts by advocates for open employment as the only accepted option to show, demonstrate or even, you know, provide any sort of evidence as to how the ADEs can be viable with their suggested move to open employment.


The evidence from ADEs is that such a move will make them unviable and this is further strengthened by the NDIS PO report which is part of the submissions from the Western Australian team.  The lack of viability and subsequent closures is not seen as a concern by ADE advocates and Inclusion Australia's view was that if ADEs become unviable due to a move to open employment, consideration should be given to them being turned into day programs.


That's a profound shift in employment considerations which shouldn't be suggested out of hand.  Day programs aren't work, as confirmed by the joint Canadian in (indistinct) international submissions to the UNHCR form for submissions for (indistinct).


There is comment within the current hearing by ADE counsel about the capacity through it's portability of supports and that nationally we should use the example of one Victorian provider who has been using the SWS for six years but has gone through a very painful restructure and this year is expected to break even after six years.


There is an assumption, again not based on national picture, that this example is or will be replicated throughout Australia if the Fair Work Commission accedes to their philosophical demands.  So we presume that because they're still here that when all of this, post-COVID, that they will just go on to bigger and better things.  That's not necessarily a commercial assumption.


Comments by ADE counsel also displayed their continuing lack of empathy for the marginalised workers who will be left behind, never to work again as more ADEs are forced to close because of insolvency.  There is emphasis by them on capacity and choice.  Well, the presumption of capacity is no different the day before our intellectually disabled family members turn 18 years of age, than it is the very next day.


There is no miraculous improvement or recovery.  They are just chronologically adults.  This means that family advocacy is no longer accepted as being the voice of their disabled adult child, no matter what level of supports they may be providing.  They are providing for their disabled family member by having to rely on external advocacy because they as a family, and as family advocates, are not considered to be the formal supports, their voice.  They are simply nothing more than informal support.


This denies them the family advocacy and places their lives at the mercy of the funded advocacy system, and now by their collegiate support, unions.  As the advocates publicly campaign for the closure of ADEs.  Again, as confirmed by the joint Canadians and Inclusion Australia's submissions, article 27, everyone has the right to work but in their words whether or not an employer will hire you is an entirely different question.


Comment by ADE counsel of the seven witnesses in our 14-person statement, who returned to their ADE, might not because they did not find open employment suitable to their needs, but they had we were assured the capacity to make those choices.  They exercised that right and they returned to their ADE.  That analysis displayed a total lack of understanding and empathy.


Choice cannot be isolated by place of employment.  Their choice was, in this case, was determined by detrimental impact on their health, both mental and physical, by social disadvantage in open employment in the workplace, they've also had that impact as well.  So they exercised their right of choice to go back to their ADE.  That right of choice won't be there if their ADE isn't there.  You cannot choose what no longer exists.


Comments about discrimination if the Fair Work Commission does not accede to the advocacy union demands, where their jurisdictional interpretations intersect with the Fair Work and Disability Discrimination Act, yes, a bit amazing (indistinct) from our perspective.  The discrimination concerns they have articulated should be balanced by a look around this courtroom and those we have had to trust as a voice for ADE employees (indistinct).


No worker is expected to represent themselves in the Australian legal system without access to social and legal support.  It is a basic principle of the UN and Australian conventions that the group of people whom we represent need advocacy and thank you very much to the Bench for being the only ones that recognise that.


Advocacy is the first rung of the ladder to support but that has been refused to our ADE employees as their chosen place of employment doesn't meet the first (indistinct) of those funded to represent them.  It's a very sad state of affairs because without advocacy there is no formal access to social justice and legal representation but here we are yet again.


What is evidenced in these hearings is there is no confidence the necessary number of external assessors would be available to meet the suggested new system.  So despite the personal assurances of certain witnesses, we don't believe and the ARTD supports that and I'm sure they will comment a little further or elaborate on it, there is not a sufficient number of external assessors.


They are not available.  They would not understand the cultural differences between ADEs and open employment, and their costs cannot be justified.  It would simply create another industry by diverting funds that would be better used to subsidise increased wage costs.  The ARTD discerns no material differences between the outcomes of internal assessors compared to internal in-house supports and assessors.  So the extra cost would be neither effect, nor efficient, and cannot be justified.  So we will support in-house assessors based on that.


Also evident in the Australian government's submission to article 27 was the satisfaction by the majority of ADE workers with their ADE jobs and their confirmation that they were supported by the - - -


VICE PRESIDENT HATCHER:  Ms Walsh, can I just take you back a step to something you just said?




VICE PRESIDENT HATCHER:  Does the SWS, as currently structured, contemplate or permit internal assessors?


MS WALSH:  It is but there was comment, there were comments within the ARTD report and we ran that trial parallel to in-house assessors and to the ARTD assessors.  Whilst we probably felt that the external assessors initially may have been the way to go, and I think that's part of what we submitted, we were very, I guess, pleased with the minimal differences between in-house assessment and external assessments.


So when we received the costs of the funding and also the lack of availability and the additional costs of the external assessors, we in fact have imposed – we have changed our view to the fact that internal assessment is the way to go, from our perspective.




MS WALSH:  So if we move back to the feelings expressed by ADE employees in the Australian government submission, they felt very, very much supported by the family feel within their work in the ADE.  And that family feel has been very nationally confirmed with the Western Australian closures.  The workers there have been denied advocacy and support but the family advocates have been there since the closure announcement.


Right from the get-go they gathered them up and included all of those workers who probably did not or may not have had support networks themselves.  The advocacy action team, (indistinct) is to be (indistinct) and they have provided the Western Australian submission to these hearings.


We've heard evidence from the employer sector that some employees were reluctant to accept extra Job Seeker income during the COVID period because it might jeopardise their DSP entitlements.  These concerns have previously surfaced in the ARTD report and also within the original hearing that's the 2019 determination.


So I guess the threat of loss or eligibility for their DSP has always been a disincentive for transition from ADEs to open employment.  If we can put a bit of body around that, in the evidence handed up there were some letters published by some of our members and they went to the heart of the fact that the ADE job is not just a job for them, it's (indistinct) their lives.


But there were three instances that actually go to the heart of why the DSP is so important.  One of the things that they put forward was the story of a worker who's now paying most if not all of his income in taxi fares just to get his job.  That's how important it is in his life.  There's comments from family advocates and the reporting obligations to Centrelink which were previously done by the service provider, that role has now fallen back to the families.


So it's now their obligation and if they don't attend to it in the required timeframe, then DSP entitlements are threatened and penalties could be incurred.  There's also reference to a well-intended push by the NDIS and advocates that a micro business is an alternative to a day program if you can't run supported employment.


However, it's been our experience that that micro business often requires family commitments of time, travel and difficult input.  History shows it has little or no long-term success because the goodwill of the community and families just can't continue to provide it and, in fact, one with which I'm familiar is a person who's retired from their own business, the last thing they want to do is now have to start up another business for their disabled son.


So if the Western Australian closures had been seven Bunnings' sites scattered around the State, with no supports for those workers, then the closures wouldn't have been anymore than a blip in the 24-hour media cycle because of the current economic climate, because many of the Bunnings or some other Bunnings stores and some others are restructuring and ADEs will have to do the same.  They're a business so they will have to restructure as well.  But their employees are a little bit more marginalised and vulnerable than the bulk of the Bunnings workers.


So further evidence has been provided to these hearings by the VSA consultation for submissions received for their proposed new disability support program.  The (indistinct) which we've provided on page 4 shows the common issues raised across all submissions received, that of the 22 matters raised within (indistinct) that intellectual disability was even lower.  It was the lowest.


It was even lower than First Nation and (indistinct) because, I mean, they are funded and they are recognised but intellectual disability, their voice has been consumed within the disability population by those with, I guess, lesser degrees of intellectual disability and other types of (indistinct).  So consequently it doesn't surprise us that that is the lowest of all of the submission issues raised (indistinct).


So if we move onto wrapping it up, none of the fundamental findings of the Fair Work Commission 2019 determination and the relevant evidence of the Royal Commission, are the subject of any material challenge by any party or any evidence to support the Fair Work Commission in these hearings now.  You have advocates for (indistinct) and open employment who continue to press the measures that will result in even more closures than what we have witnessed in Western Australia.


For the Fair Work Commission to make the changes being demanded and being publicly campaigned for, will require the Fair Work Commission to adopt a philosophical position which is not evidence-based.  We submit that neither of those options is acceptable and it places in jeopardy the existing advances that we have all cumulatively been able to achieve in the last four decades.


We reiterate that we support the positions as espoused and presented by ABI on behalf of providers.  Our members need the ADEs, so one option is a continuum of employment models for supported employees with the ADE fitting into that category.  We do not support the costs associated with external assessors.  We have well-trained internal assessors who do the job just as well.


History confirms (indistinct) in the transition from supported ADEs to open employment.  We have not succeeded in moving the community and commercial barriers for our disabled members and we reiterate the need for a stepping stone in between.  We consider that the stepping stone from ADE supported employment to open employment, doesn't have a good record and part of the reason is because there's possibly another stepping stone which should exist between there.


We advocate the implementation of the new wage structure should be monitored, whenever it is finally decided, by an independent council that involves all stakeholders.  We don't want to see it go off the rails like BSWAT did.  Our Voice Australia submits that the evidence of disabled workers in Western Australia is very real and very national.


The Western Australian closures are at risk of being repeated nationally unless the voice of the workers can be seen and heard not just within these hearings but also by the Commonwealth.  They've got a role to play here as well and it's a big role.  So we would, you know, we advocate that the Western Australian (indistinct) should be accepted as national data which is true of the existing determination made by the Fair Work Commission.


That data should be the centrepiece of future decision-making not just here but in the Commonwealth and also by the advocates and unions as well.  However inadequately I may say it, and I've said it many times over many years, is these workers have to be given a voice at policy and advocacy levels.  I can't say it as well as they do.  To them their job counts, and it does for them, their family, family advocates and carers, and for the nation.  Thank you.


COMMISSIONER CAMBRIDGE:  Ms Walsh, you speak of the Western Australian closures but I thought I read somewhere that the Federal and State, Western Australian State governments provided relief funding and those particular centres still remain open.


MS WALSH:  They do.  They have provided funding for a period of 18 months to actually transition to other options.  One of our members over there is actually a part of the taskforce.  So certainly the existing work sites will not remain and with advocacy, what our advocates are doing there is they are advocating the wishes of the people for whom they advocate.  Realistically those figures I've (indistinct) and we've actually confirmed (indistinct) to us, they will be transitioned into other smaller community type supported employment if available.


They have set up, I think they call it the Academy, which is pretty much day programs, vocational training.  And when you look at the age groups of the people who provide the supports to be provided, they are still younger.  You know, they're not all older (indistinct).  So that transitional funding is part-State, part-Federal and those websites, as we know them today, will not remain.


That's my understanding from the members involved over there.  There may be one exception but the others (indistinct) and the regions are the ones that will suffer the most and that's what's happened because there's two down south as well, and the others around the Perth area.  So when I say the closures, it's expected that the majority of those people will not have work as they understand it and as we understand it.


COMMISSIONER CAMBRIDGE:  Or they might different work in a different location but at this stage we don't have actual job losses for those workers, do we?


MS WALSH:  We don't because the sites are remaining open but it serves, I guess, as evidence of what will happen if, in fact, the insolvency issues and the wage costs – it's not just wage, it's operating costs for our ADEs actually doesn't improve.  And I think from a commercial perspective it's reasonable to expect that the insecurity felt within that sector over the last five years, especially with COVID, has had to have been a disincentive for that sector.


It's a disincentive for ordinary business employing the majority of people without special needs, then it's reasonable to assume that that impact has also been on that sector.  So, no, those job losses are not confirmed at this stage but they will not all have jobs and I think that's fairly – I mean, we're talking about 700 people.




VICE PRESIDENT HATCHER:  Thank you.  Mr Christodoulou.


MR CHRISTODOULOU:  Your Honours, I might just deal with a couple of items in response around the issues that have been raised.  You did say, your Honour, that your thinking may be that in terms of the gateway provision that may move away from (indistinct) to payment from the DSP.  I think you might have - - -


VICE PRESIDENT HATCHER:  No, what I was saying was that B1.1.1 opens by saying:


Grades A and B of the classification structure schedule apply to any employee with a disability.


If the phrase, 'employee with a disability', is given the meaning that it bears in the Fair Work Act, that is someone who gets the DSP or is eligible for it.


MR CHRISTODOULOU:  Or is eligible.


VICE PRESIDENT HATCHER:  Or is eligible for it, whatever it is.






MR CHRISTODOULOU:  Yes, okay, that's fine.  You did raise a question in relation to what do with how to consider the rates as they are currently proposed of $7 and $14 and the impact.  I must say I'm only now speaking on behalf of Greenacres that to reduce the current $14.59 to a lower rate would have no impact whatsoever on (indistinct) closer to $4.00 anyway.


I suspect the impact, and there's nothing in the report to suggest this, but because there is a higher proportion of persons that otherwise would not be SWS are going to be SWS because people have actually decided that that's where they fit within the structure you're proposing.  That's where the impact may well come from.


VICE PRESIDENT HATCHER:  Sorry, can you say that again?


MR CHRISTODOULOU:  So, there's a fine proportion – so there's numbers of people as I understand it, 28 per cent of people who fit into grade (indistinct) and that's on page 9.  27 per cent fit into grade 3 and then the remainder would be in either grade 2, grade 3 or whatever as a percentage.  The difference – so there's a high percentage of people that will go directly to grade 2 in the SWS under the trial model.  So, I'm suspecting that's where the major increase might come from.


VICE PRESIDENT HATCHER:  So, that means that any – that's right, but any changes to t he rates in ABL, or the bottom, the minimum wouldn't have a huge effect.


MR CHRISTODOULOU:  Well, I think that would be the main thing.  I'm not suggesting there shouldn't be a long phasing-in.


VICE PRESIDENT HATCHER:  And that's true, phase-in doesn't stop the problem because we can't phase-in grade 2.


MR CHRISTODOULOU:  Yes, that's right, you cannot phase-in grade 2.


VICE PRESIDENT HATCHER:  I think a really smart person could probably get the data from this report and do a computer model where we could type numbers in and get a cost aggregate outcome but I doubt the Department is going to do that for us.


MR CHRISTODOULOU:  No, no.  So, I just wanted to make that point about the rates from my own perspective.


VICE PRESIDENT HATCHER:  I mean apart from transitioning, I don't hear anybody saying that we should make any changes to the rates for A and B.  Is that where we're at, notwithstanding what the report said about costs.




VICE PRESIDENT HATCHER:  Nobody has proposed that we reduce those rates.


MR CHRISTODOULOU:  No, because if you ever look at the alternative ABL model, and the basis upon which those rates were put forward, they probably would have provided an even higher increase, although we were putting that forward on the basis of trying to resolve the issue of not having enough assessors, but also the whole burden of having this extra overlay of administration in our organisation, which I'll touch on very briefly, because I'm sort of getting the feeling that you're probably not at all looking at the ABL alternative proposal.


But in any event, I don't think you need to change the true rates that are currently there, but I do think there is a long phase-in to ensure the set-up.  If I could go to exhibit AD, which is a list of apparently organisations that have used the ABL, that have used it up until the year ending 30 June.  Just to simply say to the Commission that there's a whole range of organisations there that would use the Greenacres tool and the Greenacres tool has a (indistinct) when you get to level BA that you then go and SWS and following.  So, and I can tell you already that the Active Foundation for Luna, Ballarat, Disability Services Australia, the Endeavour Foundation, the current Disability Services Tasmania would qualify because the numbers are really high there.


But they could be some of the organisations that I know of that use the Billy (indistinct) tool, and as you know from the evidence in the main case, that once the BSWAT was found to be discriminatory, organisations predominantly use a lot of Greenacres tools.




MR CHRISTODOULOU:  Or SWS.  In relation to exhibit AD which is an extract of our financials from Greenacres, I did say in the witness box when these figures were put to me that – I'll just go to these 2021 general wage costs, 14.6 meaning I'm going to use figures and then the superior employee rate cost of $3.8 million.  I did say in the witness box that that $14 million, the greater proportion of that is actually not associated with our ABN.  They are support staff in other areas of Greenacres.  So, if I could just put that into further detail, of the 174 equivalent full time staff we have, only 28 are full time equivalents of the ABN.


So, if you look at that as a figure and use those percentages, there'd only be about $2.8 million would be the general staff wage costs as against the $800 000 for supporting these rates.  Bearing in mind, that Job Keeper is included in those figures.  And also included the key personnel, just to also make this clear.  Of the one million odd dollars in 2021 of key personnel, it's only $155 000 of that was for wage costs of our general manager in the ABN.  So, I just want to put forward those figures into perspective.


So, Your Honours I do not support the submissions made by ABL.  I don't intend to respond to the jig saw puzzle that Mr Harding has tried to put together to say that the creation of rates of pay below the national minimum rate would be discriminatory by virtue of the various provisions of the Disability Discrimination Action, the Fair Work Act, the interpretation of the Human Rights Convention and a number of Federal Court cases.  It's a jig saw puzzle in my view, because it doesn't fit and Mr Ward has adequately dealt with this.


I would say this though, if we did accept for one moment the part of what Mr Harding was saying was correct, that is, that you can only determine rates for people with disabilities by reference to the minimum classification rate in the award, and nothing less than that, then it does follow that what the Full Bench could do is further develop it's A and B definitions, expand them to four or five levels, but turn it into assessment criteria, all to relate to the tasks the supported employees perform tailored to meet their capacity, level of supervision and support and then put percentages against that.


VICE PRESIDENT HATCHER:  Then if we have another trial, we'll be back here in five years.


MR CHRISTODOULOU:  No, I don't want to do that, but I'm just suggesting that if for some reason you come to this conclusion that Mr Harding's legal interpretation is correct, it doesn't follow that the SWS is the only thing that you would assess, supported employees against in terms of where (indistinct), certainly from my point of view, not productivity.  It would be the only thing that could possibly determine capacity.  Because there's been no evidence in these proceedings to demonstrate that by virtue of how fast a person works, is the test of one's capacity.  Capacity is a broad term when considered in the context of a person's job, would be the capacity to remember, to read, to write, to count, to follow instructions, to analyse, to make decisions, to carry out tasks as directed.  Capacity to undertake the requirements of a job.


That's where we started in the proceedings quite some time ago, when we talked about the whole job and the factors supporting employees in many places, could not perform the whole requirements of a position in the role they were allocated.  The evidence in the December decision, to the evidence in these proceedings, it clearly demonstrates that they break down their work into simple tasks to accommodate the capability and capacity of their supported employees to carry out work.


I will not try to cover some of the ground that's already been covered by Ms Walsh and Mr Ward, except to say this, that one of the gateway provisions and that was that it only applies to supported employees who cannot fulfil the otherwise bigger requirements of whether it's grade, one, two, three or so on, of the SES qualifications.  Then of course, in that case, under your model proposal, the employer would be bound to apply the SWS, or it may decide not to apply the SWS.  As I suspect in many cases, under this new regime, more supported employees may well be on a much higher rate than what they are now.


VICE PRESIDENT HATCHER:  Mr Christodoulou, what would a transition mechanism actually look like?  That is usually when we do this, we're going from figure $X to figure $Y without steps in between.  The problem here is we don't actually know what the starting point is.


MR CHRISTODOULOU:  Yes, that's an issue that I haven't resolved in my mind, other than this.  I did actually do a table up.  I did do a table up when I looked at the ABL model, which actually set rates.  That was really easy, because you could say well, if the rates were going to be five, nine, 12, 14 and whatever, then you'd find the rates you start as the rates this year and you transition to the rate next year and you have a table of rates that over the years gets to those final rates.  And of course, those final rates will increase every year by the National Wage Increase.  You can imagine how that will occur.  What I can't work out here is you would almost certainly need a discount in some way for certain number 14 as a starting point.  Because the seven and the 14 would have to be the end point.


VICE PRESIDENT HATCHER:  Sure, but where are we starting from?


MR CHRISTODOULOU:  Well, as you raise, you raised the question, do you start at $2.50 to get to the $7.00?  My personal view is probably start at $3.50 to get to the $7.00.  The length of data is one of the issues I think that concerns.  I could show you what I would do with Greenacres if it was to transition over eight years and give you some really reliable data of how I think it could work, but that's only Greenacres.  I can't speak for the industry unfortunately.


Although, having said that, your Honour, given that you are allowing the Commonwealth to come back to you with some information, it may well be possible that they may be able to come back with a transition proposal or to discuss it.


VICE PRESIDENT HATCHER:  Well, this report has been out since the beginning of the year, Mr Christodoulou, I would have thought that's what you've been talking about for six months.


MR CHRISTODOULOU:  Well, let me say this.  The rates of pay that we put up as in the alternative proposal, which were the set rates of $5, $6, $9 and $11.50, were end rates and then we did have a set of transition rates to get to those figures.  Now, you know, it wouldn't be too difficult I suspect if we need to go back and re‑look at that.


I just want to make this point, that during the evidence that was put – I think Mr Harding was talking about a quarter of employees being on a fraction of a minimum rate.  There is no argument about that.  People with disabilities in open employment on the SWS are on a fraction of the minimum rate.  They can be on 10 per cent, 20 per cent, 30 per cent, 40 per cent of the minimum rate, so I don't think that is in contention.  In fact our friends have not argued for a full award rate of pay at all because they fully know that if they were to argue for that, then there would be tens of thousands of people put out of work, not only in supported employment but in open employment.


Our friends have tried to make out that somehow ADEs are just any other commercial enterprise.  I think the evidence has demonstrated we're not just any commercial enterprise, unlike open employment where businesses concentrate on providing goods and services to drive up profit for their owners or shareholders.  ADEs carry out an expansive range of work in all conceivable areas where they believe there is an ability to tailor that work to meet the capabilities of the people with disabilities that they employ.


They are also environments that can provide positive social outcomes, which Ms Walsh has gone through, so I will not go through the benefits that supported environment provide to supported employees, other than just to reiterate again that we are not‑for‑profit organisations whose purpose is to try to keep people with disabilities in employment, but we need to remain sustainable to be able to achieve those objectives.


I think the situation with Activ Foundation is a good example that even with the current wage tools that we've got, it's getting more and more difficult for ADEs to remain sustainable, notwithstanding the fact that in due course there will be increases in wages for their supported employees arising out of these proceedings.  In terms of the Activ Foundation, if it wasn't for the government -if it wasn't for the federal and state governments stepping in - that organisation gave its people with disabilities four weeks' notice or whatever the provisions were under the SES Award and they were going to be out of a job.  There was no plan to find them a transition.


It was only through the shock, horror and the shout‑out of the community that the federal government stepped in and, as I understand it, that money that has been available to Activ is not to bail them out, it's about simply trying to ensure an ordinary transition and where possible to try to find alternative employment to those supported employees, but only time will tell whether 12 months is enough.  It will be an interesting situation and question to be answered as to how many of those 700 people actually find alternative employment.


In these proceedings the Commission does have three choices to make.  It could reverse its December 2019 decision where it found that the SWS was not an appropriate tool in itself for ADEs.  In my view nothing in these proceedings here this week, in any of the submissions made or evidence provided, in my view should change the 2019 decision.  The Commission of course could adopt and/or finesse the model that it has trialled and certainly the ARTD report demonstrates the model can, with some recommendations to enhance it, be implemented.


Classifying employees into grades is nothing new.  Some classifications, as you would know, are easier to understand than others.  Some are more prescriptive in awards than others.  In this case the introduction of new grades will always cause some confusion, but nothing out of the ordinary.  Ultimately it is incumbent upon us as employers to get it right and that means we've got to seek advice from our employer organisations.  In the case of supported employees, they might want to seek advice from their unions where unions do exist for supported employees and ultimately you have courts and tribunals that can resolve disputes that can arise from time to time around classifications.


I was going to say one of your other options is to adopt the ABL alternative.  I won't go into that in detail in terms of the structure and the definitions, other than to say this:  that was put forward to overcome what we still believe is a major problem with the trialled model and that is whether we will have enough SWS assessors to be able to implement that scheme.


VICE PRESIDENT HATCHER:  Mr Christodoulou, say if we allowed as part of this transition period – just say, for argument's sake, it was five years - that people had to be SWS'd assessed at some stage by the end of that five‑year period and until then they would suffer at least no loss of pay, and they would have to at least somewhere fit in their classification, would that overcome the problem or ameliorate it?


MR CHRISTODOULOU:  Yes.  What I was going to suggest, your Honour, is this:  that certainly give the employers at least at a minimum 12 months to do their benchmarking, so they're going to have to benchmark each task and see how long it takes, but then I would have thought the employers can do their own productivity assessments because they're going to do them, anyway.  They are going to have to do them, anyway, because of the 50/50, and that a provision go in the award that simply says that the employers' productivity assessment will prevail until such time as the DSS assessor comes to do the assessment.


If that means it takes 12 months for DSS to get its act together or five years, at least the process that you have put together can start, but I can't see any other way around this to be honest.


COMMISSIONER CAMBRIDGE:  We would have to put a safety net under that though.  If the assessment came in at a lower rate than what had been picked beforehand, we couldn't see the person going backwards.


MR CHRISTODOULOU:  No.  Well, can I just say I can't imagine any employer who has done an assessment of an employee – say if the employee was 30 per cent and after the DSS assessor came in and said it was 20, is going to reduce their employee's wage.  I can't imagine that that would happen, so I would definitely support that provision going in, Commissioner.


COMMISSIONER CAMBRIDGE:  One wonders about the other option of the catch‑up if you were found to have been under‑classified for a period.


MR CHRISTODOULOU:  Well, that is a danger.  Let's say the employer has determined a 20 per cent productivity, the assessor comes in and says it's 70 per cent.  The average ends up being higher than the 20; what do you do in those circumstances?


COMMISSIONER CAMBRIDGE:  And in the transition period what do you do for that period of time when it has appeared that there has just been an underpayment effectively.


MR CHRISTODOULOU:  Yes, well, I don't know how you resolve that because you wouldn't want it to be an underpayment if the employer has genuinely done it, unless of course the employer has positively set out to artificially – and I don't suspect they would do - - -


COMMISSIONER CAMBRIDGE:  I'm not suggesting that, but it's just this dilemma with the idea of putting something in place and then having it reassessed at some future point in time.


MR CHRISTODOULOU:  Yes, yes, but I can't see any other way that the Commission's trial model can proceed, you know, and have it in place in the next three years until this happens, because notwithstanding the evidence given by Mr Grzentic, that, yes, they could gear up for it, I doubt that that is going to happen.  It really is a matter for DSS to make sure it has enough qualified assessors in place to do 16,000 people with disabilities.


Two final matters I would raise.  That is, we do support – or I support the minor amendments made to the Rights of Work clause that have been proposed by Ms Walsh.  They are a set of words that I think just signal, but it's not good enough I think for any provider to simply give the requisite statutory notice without any consultation that, you know, someone is going to be put out of work, particularly people with disabilities.


Certainly I know at Greenacres we are going through some difficulties at the moment and we have been for the last two months having meetings with carers, supported employees, we've invited the unions along, just to let them know where we're going.  We haven't made any decisions to make anybody redundant and hopefully never will, but I think it's really important very early when organisations are having difficulties if they need to consult, manage, try to find solutions with their workforce.


Finally, I did want to say something because it may be – well, I'm sort of hoping it's the last time we will be together - - -


VICE PRESIDENT HATCHER:  Sorry, before you move on, did Activ make any attempt to comply with the current clause 32?


MR CHRISTODOULOU:  I can't comment, your Honour.  I have no idea if that was the case.




MR CHRISTODOULOU:  Just in conclusion, I do want to thank the Full Bench for its perseverance in this matter.  I know this is sort of a separate set of proceedings, but this whole issue has got to be the longest single, if you want to call it, dispute for conciliation and arbitration I've actually seen before the Commission in all the time I've come to the Commission.  Like, it has been going since I think 2014 when it was Watson DP who got the first application - - -


DEPUTY PRESIDENT SAUNDERS:  You had better get that right; I think it was VP, wasn't it?


MR CHRISTODOULOU:  VP?  Okay, sorry about that.


VICE PRESIDENT HATCHER:  Well, there is a debate about that.


MR CHRISTODOULOU:  And of course since then we have seen the retirement of Booth DP.  Sadly, we have seen the passing of both Paul Cain and Stephen Bull, who were advocates in these proceedings.  We have had a number of different ACTU officers in the proceedings, not to mention we have had some changes to the personnel that have been assisting Mr Ward from ABL.  We have had numerous, numerous, and an abundance of officers from DSS and changes in the leadership of DSS during this time.  These proceedings seem to be outlasting many of the key players - - -


VICE PRESIDENT HATCHER:  And four Prime Ministers, I think.


MR CHRISTODOULOU:  Yes, there you go.  I did say when this first went to arbitration, and it started many years ago, that this was going to be one of the most complicated matters that this tribunal will have ever had to have contended with and I think it has been, and might still be the case, but I just want to remind the Commission that, you know, the supported employees go to work, to their place of employment, an ADE.  They go there to engage with their friends, interact with their support workers, to have a sense of purpose in the work they do.


I do urge the Commission to try to find the balance between higher remuneration on the one hand and on the other hand the right of people with disabilities to be able to work in our community, and these of course are the most vulnerable workers that we have.  They are my submissions, if the Commission pleases.


VICE PRESIDENT HATCHER:  Thank you.  Ms Langford, did you want to say anything?


MS LANGFORD:  Probably the only thing I wanted to add was just a question that you had a little while ago just in regards to internal assessments within the modified SWS that the employee can do.  It's an assessment as per se.  What it is, is they can do a data collection exercise and (indistinct) and they can utilise that data when they are validating what the actual (indistinct) have actually - - -


COMMISSIONER CAMBRIDGE:  I understood that.  I thought


Ms Walsh was talking about something different, that is that I thought Ms Walsh was suggesting that the entire assessment could be done internally.  That's what I got a bit confused about.


MS LANGFORD:  No, it can't be.




MS LANGFORD:  That's all, thank you.


COMMISSIONER CAMBRIDGE:  But it might have to be in the transition period.




COMMISSIONER CAMBRIDGE:  Do you accept that?


MS LANGFORD:  Yes, I do.  I absolutely do accept that the - -




MS LANGFORD:  That's actually a possibility, just with the sheer volume of (indistinct).


COMMISSIONER CAMBRIDGE:  Yes.  Well, there's not going to be anyone else to do it.


MS LANGFORD:  Correct.




MS LANGFORD:  And you also have to take into account that there are external SWS assessments, as well.  There are about 5000 people (indistinct) employment.




MS LANGFORD:  At this point of time, who also will be having their (indistinct) at the same time as the (indistinct).


COMMISSIONER CAMBRIDGE:  Yes, it's going to be a big growth industry.


VICE PRESIDENT HATCHER:  So, currently, I'll call it the SWS Industry, assesses about 5000 in open employment, and a small proportion of the 16,000 in supported employment.  So it's really going to, as it were, more than double, and perhaps triple.


MS LANGFORD:  Quadruple, as I – yes, absolutely.




MS LANGFORD:  (Indistinct.)




MS LANGFORD:  Thank you.  Ms Gruschka, we're waiting to hear from you, a solution to all these problems.


MS GRUSCHKA:  Thank you, your Honour.  Your Honour, I have come today prepared with some old traditions that speak to from the intend of government and the change – the (indistinct) change of government.  I don't have detailed submissions on the number of (indistinct) that have been identified in the report.


I might make the oral submissions that have been prepared and then perhaps (indistinct) with the outstanding matters that I (indistinct) like to contribute to, but those submissions (indistinct) today.




MS GRUSCHKA:  As the Commission and the parties should be aware, the parties have previously made written submissions and these were (indistinct) on 22 April 2022, and some brief written submissions on 3 August.  Those written submissions reflected the Department's responsibilities in respect of the overall policy responsibility regarding employment (indistinct) those working in supported employment (indistinct).


The policy responsibility and ongoing management of the supported wage system, and managing an actual panel of (indistinct).  By and large, (indistinct) submissions both for duplication of the award variations proposed and the Full Bench's decision of December 2019, and specifically what the proposed approach would mean in terms of impact and costs associated with a centralised approach to SWS (indistinct).  With the change in government I have also been instructed to make and re-file submissions on the Commonwealth's current position on matters that are central to these proceedings.


Importantly, the Commonwealth considers that the intended(?) Fair Work Commission (indistinct) to determine the details of how the wage structure should operate, and as such, is not putting forward its view on matters such as the most appropriate level of the wage increase, or the most appropriate design of the wages (indistinct).


Overall, the Commonwealth recognises that people who experience (indistinct) of economic contribution and turn their own discretionary income from work (indistinct).  The work provides more than just new skills and experiences.  It brings a sense of purpose and direction, and allows workers to forge new (indistinct) connections.  These factors are what makes workforce participation so important.


The Commonwealth also recognises (indistinct) provision tied with the modern award objective in Section 134 of the Fair Work Act.  Meanwhile it is a matter for this Commission to determine the terms and conditions of the Supported Commonwealth Services Award.  The Commonwealth notes the particular relevance of subsections 134(a), (c) and (f) to this award (indistinct) impact us.


Those subsections refer to the relative living standards (indistinct) the low paid, the need to promote social inclusion through increased workforce participation, and the impact upon businesses in the sector, including on productivity, employment costs and regular (indistinct).


On wages the Commonwealth is, in principle, supportive of increased wages under the award.  This is consistent with the Commonwealth's position in (indistinct) the minimum wage review earlier this year.  (Indistinct) the Commonwealth acknowledges the importance of an independent industrial Tribunal such as the Commission, making specific decisions regarding the precise value of wages and the (indistinct) any such increases to occur, even matters that should be determined by the Commission.


The Commonwealth also supports a move to an independent wage assessment (indistinct).  For the Commission to adopt the proposed approach of using the modified supported wage system as a single wage assessment tool, the Commonwealth would not be in a position to implement (indistinct) initial term.  As made in the department's major submission, a move to the SWS would create implementation challenges, including the need to grow the SWS assessment workforce to respond to increasing demand.


VICE PRESIDENT HATCHER:  So, what do you mean by, the short term?  What does that mean?


MS GRUSCHKA:  Immediate short term (indistinct), Deputy President.  My next sentence goes on to refer to a few years - - -




MS GRUSCHKA:  As the timeframe that's referred to, I think, in the ARTD report, I think at page 7.




MS GRUSCHKA:  And we submit that that will be needed to build a capable essential workforce, particularly in light of the current labour market conditions.  The Commonwealth does stand ready to work with the parties on the implementations and what changes are determined by the Commission.


The Commonwealth recognises also the importance of the ongoing viability of the ADE sector.  The Commonwealth acknowledges the issues facing the sector are complex and there is work to be done outside of these proceedings.  That work involves longer term planning and support for the sector to ensure sustainability, and importantly, the ongoing workforce participation for someone with a disability.


For example, the Commonwealth is currently working on a longer term plan to transition the sector to (indistinct) commercially viable businesses, that (a), better meet community expectations, and (b), provide greater choice and control for people with a disability.


On 29 July this year the Commonwealth State and Territory Governments discussed the need to support meaningful employment for people with disabilities currently working in ADE.  All parties agreed to engage in the Commonwealth led round table on issues and opportunities in the future of support employment.


Finally, the Commonwealth wants to express its support for the participation for people with disabilities providing (indistinct) employment, improving participation of people experienced (indistinct) from contributing to their local community, and also to the wider Australian community.


Vice President, I have, on my count, about five matters that have been identified this morning that the parties and the Bench would like to hear more from the Commonwealth on.  This is a list but we are not in a position to respond to those in detail today.  I would like to ask for the Commission's indulgence for us to prepare some written submissions so - - -


VICE PRESIDENT HATCHER:  Just remind me, what were the five matters?


MS GRUSCHKA:  I've listed five, but then you're welcome to add to that list, your Honour.  But the terms(?) I have was some submissions on the application of Section 9(4) of (indistinct) for that and in particular, the context of the sector (indistinct) satisfaction; and then the related issue of whether Grades A and B might affect eligibility to the disability support pension.


VICE PRESIDENT HATCHER:  I don't think we said we desired further submissions, I simply said that we assume that you would tell us, or you would have told us by now if there was any possibility that the establishment of Grades A and B would affect people's eligibility for the DSP, so in the absence of the department saying something, I think we would proceed on the assumption that it will not.


MS GRUSCHKA:  Thank you, your Honour.  And what about the general comments made about the application operation of Section 94?


VICE PRESIDENT HATCHER:  Only if you want to say something.  The only thing I would add is, as I've plainly indicated, we now have access to the submissions made by the Commonwealth in the Federal Court proceedings.




VICE PRESIDENT HATCHER:  So we will assume that that remains the Commonwealth's position about those issues, unless you tell us otherwise.


MS GRUSCHKA:  Okay.  Thank you, your Honour.  I did attempt to take some instructions on whether it would be a simple exercise to address the matters that arose this morning but my instructions were that it wasn't that simple, and that we would need the time to put something forward.  So can I just go through my list, and then perhaps we can (indistinct) of whether you would like to hear more on that or not.




MS GRUSCHKA:  But the other item I had was the Department's intentions in respect of the accommodation of the recommendations (indistinct) ADE report on the modified SWS.




MS GRUSCHKA:  But (indistinct) achieve putting the information to the Commission in writing, and to use


Mr Ward's words, get some more information on the operability, funding, (indistinct) care capacity of the proposed approach.  We have provided some information in that in the July submissions, but it seemed to me that there was decidedly more about that, from at least ABI and we are happy to do what we can to provide some written submissions.


VICE PRESIDENT HATCHER:  In respect of that, I mean, we'll consider the way forward but in respect of that, a better approach may be for us when we formulate the outcome, to propose a transitional arrangement and then the Commonwealth can indicate whether that arrangement is viable in terms of the difficulties that have been raised.


MS GRUSCHKA:  I'm in your hands, your Honour, on that.  The final issue is one that I can't make a commitment to, to respond to in any sort of final period of time.  That's the issue of funding of the new assessment approach.  That is a decision that will be for Government and I don't have a timeframe on that.  But that's my list, your Honour.




MS GRUSCHKA:  Is there anything more that the Bench would like to add in terms of - - -




MS GRUSCHKA:  So on that, your Honour, I'm in your hands as to whether you would allow the Commonwealth to put on more written submissions on those points, or whether you - - -


VICE PRESIDENT HATCHER:  What I think we'll do is, we'll consider the making of further directions.  As I said, some of those matters are probably best left till a further stage.  Some of those matters, I'm not asking submissions on unless my view is formed that some of the assumptions that we're making are incorrect.


MS GRUSCHKA:  (Indistinct.)


VICE PRESIDENT HATCHER:  So perhaps if you get those instructions and then if you need to make further submissions you can inform us and we can take it from there.


MS GRUSCHKA:  Thank you.  Is there anything else I can respond to?


VICE PRESIDENT HATCHER:  Not that I can – no.


MS GRUSCHKA:  Thank you.


VICE PRESIDENT HATCHER:  All right, we thank the parties for their submissions.  Unless there's anything further - - -


MR HARDING:  Could I (indistinct) close, your Honour?


VICE PRESIDENT HATCHER:  You're not an applicant.


MR HARDING:  I thought you foreshadowed the opportunity to reply.


VICE PRESIDENT HATCHER:  Did I?  Well, is there anything genuinely new, as distinct from issues that have been fully ventilated, that you need to reply to, Mr Harding?  I mean, I think with respect, we have a very good understanding of your case, except perhaps for some of the complexities of the jurisdictional submissions, but is there anything new that's popped out of the submissions that you need to deal with?


MR HARDING:  Yes, there is.




MR HARDING:  Do you want me to deal with those?


VICE PRESIDENT HATCHER:  Yes, let's deal with them now.


MR HARDING:  In light of that indication, your Honour, I will attempt to confine myself to some of the particular things that mainly were raised by Mr Ward, albeit I noticed that in fact Mr Christodoulou (indistinct) for those who participated were definitely outvoted(?), in that - - -


VICE PRESIDENT HATCHER:  You left Mr Ward out, as well, so that's not - - -


MR HARDING:  No, no, Mr Ward was there.  Just people I work with.




MR HARDING:  Your Honour, I did want to say some things about one aspect of what Mr Christodoulou said that I was not entirely clear about, but the way in which, as I understand it, the existing wages approach that has been proposed has this concept of a tailored or adjusted job which sounds, you know, a single rate of pay for that tailored or adjusted job.


Then on top of that there is the addition of a productivity assessment through the SWS.  There's a degree of double counting in relation to that because there has already been, on the way through, an assessment of the employee's disability and then a further assessment by reference to a different tool of their productive output.


VICE PRESIDENT HATCHER:  With respect, I don't think that's correct, speaking for myself.  I think the first step is an assessment of the work value of the job.  So just as currently in other awards the SWS might apply itself to grade 1 or 2 or 3 or 4, if we establish more grades for jobs that aren't currently contemplated by the award, you have a grade based on the work value, well, then you have a productivity assessment of that.  That is, with respect, the same concept, isn't it?


MR HARDING:  Well, no, not really, your Honour, because unlike the other grades 1 to 7, there is this pathway on the way to grades A and B which requires the establishment of a position that responds to the circumstances of the employee's disability.  In that sense what we're looking there at - as I understand the gateway requirements - is you make some assessment of capacity or ability or whatever it is that is the circumstance that the disability means and then that results in a job which consists of certain duties, but there is an intersection between disability on the one hand, job on the other, so that the work value exercise invariably picks up individual circumstances.


VICE PRESIDENT HATCHER:  Perhaps, but as I raised with you yesterday I'm not sure the concept changes if we entirely remove the gateway requirements.  That is, we simply describe these jobs.


MR HARDING:  Well, if you describe the jobs they may dispose of that issue, but at the moment that's not the way it's expressed.  It's a factor because the concept that has been identified is one in which there is a single rate of pay that is prescribed for anything that is tailored or adjusted.  Perhaps in relation to the criticism that has been directed at the reliance on section 47 of the Disability Discrimination Act, apparently I'm accused of inserting words into that Act and coming up with my own idea of what it constitutes.


The ordinary meaning of 'capacity', according to the Macquarie Dictionary, is a measure of output performance and its various other irrelevant meanings.  It's on that basis that 'capacity' here is to be understood as the output of a person who is performing work.


VICE PRESIDENT HATCHER:  In any event, as a matter of statutory construction you're happy for the word to be given its ordinary meaning.


MR HARDING:  I am, yes.


VICE PRESIDENT HATCHER:  Yes.  What do you say about Mr Ward's submission – and this was in relation to section 94 of the Social Security Act – that in the definition of 'continuing inability to work' a reference to program of support is at least administratively taken to include anybody who works in an ADE?


MR HARDING:  Yes.  I mean, there is a variety of other parts to a program of support, it's not confined to an ADE.  He has missed out some words.  The impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next two years.  This is a very complex definition - - -


VICE PRESIDENT HATCHER:  But if we read it as Mr Ward urges us to do to say program support includes anybody in ADE, then it's only satisfaction as to impairment; the person can't work outside of an ADE.


MR HARDING:  Well, I suppose that's right.


VICE PRESIDENT HATCHER:  Why do we need to be bothered by that if that's a matter for the satisfaction of the secretary of the department?


MR HARDING:  Well, because you're crafting an award standard that pertains to a group of people who are described and defined by this section.  That's why you have to have regard to it, because save for this section and section 95, the limitation or the immunity in 153(3) has no operation.  What I was submitting is the Commission would naturally guard against the risk that a particular individual who works in an ADE may fall outside of the concept of an employment and disability.


VICE PRESIDENT HATCHER:  Mr Ward's submission is that can't by definition happen for the reasons he explained.  That is, it's a circular proposition that if you work in an ADE you are by definition entitled to the DSP.


MR HARDING:  I think the satisfaction of the secretary has to be guided by the Act.  He can't just make up his own satisfaction.  I mean, it's true to say I think that the Commission can have regard to the fact that if a person is receiving the pension then there must have been satisfaction, but here there is a change to the outside – the external circumstances which may affect the satisfaction and in those circumstances the Commission ought to have regard to what the Commission is doing, what impact it may have, in relation to a continuing entitlement - or a continuing status, more relevantly, for the purpose of 153(3).


I'm anxious that if there is a scenario in which we have individuals with a disability who are working in an ADE who enjoy a particular status because of existing industrial circumstances, that there may be a change to their position.


VICE PRESIDENT HATCHER:  Well, again, in the absence of contradiction, I think it's reasonable to assume that the department would tell us if that was the case.


MR HARDING:  Mr Ward did draw your attention to – he seems to revoke the construction that we advance by reference to 284 of the minimum wages objective and points in that respect to (e):


Providing a comprehensive range of fair minimum wages to junior employees employed with a disability –


and seems to take comfort from that provision to say that our construction is untenable.  Well, with respect, the range that 284 is referring to takes account of the immunity in 153(3) which is to be construed by reference to the subject matter that that provision deals with.  So 'range' is not something that stands alone.  It's informed by other provisions of the Act and our position is simple:  153(3) confers an immunity, as your Honour said, that overrides or disables the operation of 153(3)(1), but in a way that we say has to correspond with the subject matter of that provision.  That's the short point.


VICE PRESIDENT HATCHER:  Mr Ward's submission is the subject matter of the provision is to be found in 284 so that, as it were, 153(3) facilitates and supports the operation of 284 permits.


MR HARDING:  Yes, of course it does.  I don't disagree with that proposition, but it doesn't mean that it exhausts its meaning.  At the end of the day, 153(3) refers to a category of worker where you're performing a function that pertains to minimum wages.  What we say about that is that obviously that engages the minimum wages objective, but we know from the annual wage reviews that minimum wages has a particular meaning.


I think the case that I took you to made clear that minimum wages which engages this objective is that the parliament is taken to have applied that settled meaning in designing the Fair Work Act.  So, one can't look at the minimum wages objective and say that's it, that exhausts the circumstances.  They are particular considerations that apply when fitting a minimum wage.  Obviously they're required by statue, but that occurs against a background of principle.  What we have urged is that that principle be given effect in setting minimum wages for this cohort of people and nothing in 153(3) denies that.


The other provision he took you to – and I think it was subsection (3) which refers to wage rates, and the submission I think he made in relation to that is the SWS is a process, not a rate - well, with respect, like junior rates which is expressed as a proportion of a minimum rate, all that the SWS does is to provide a means of providing a percentage of the minimum rate.


It is a specific process that has been designed to cater for the individual productive output of a particular person which leads to a percentage of the properly fixed minimum rate.  It's no different in principle.  It's on the way through, of course, that it produces – the process produces the percentage, but the percentage is ultimately a percentage of the minima.


Our proposal does not do any violence to the requirement in (3)(a) that there be a rate set.  Moreover, I draw attention to the current schedule which says that in relation to wage assessments under the SWS – this is D.6.1 –


the appropriate percentage of the relevant minimum wage to be paid to the employee must be lodged by the employer with the Fair Work Commission -


which promotes enforceability obviously in relation to the rate that is then payable for the work that has been determined in the percentage way that the schedule contemplates.  He drew your attention to an authority.  I think it was in part of the conversation that you had with me, Vice President, in relation to first award principles.  Reading this authority it seems to be referring to the principles that applied to the former concept of a paid rates award.  We're not talking about one of those.


VICE PRESIDENT HATCHER:  I don't think that's right.


MR HARDING:  That's what it seems to be talking about.


VICE PRESIDENT HATCHER:  What is this authority?


MR HARDING:  This is the authority that Mr Ward took you to.  It's the wage case, the Australian Industrial Relations Commission.  He has handed up the authority, but it is what it is.


VICE PRESIDENT HATCHER:  The first awards principle is not confined to paid rates awards, Mr Harding.


MR HARDING:  Well, all I can say is that is seemingly the context of this decision, but if that's wrong then so it is, but existing rates and conditions also has to take account of the prevailing circumstances pertaining to this category of people.  I can't advance the submissions any higher than what we have.  Mr Kemppi is pointing me to another paragraph, but you can read it for yourselves.  I don't need to take you to it any further.


The Convention, article 27, my friend took you to that and drew your attention to one aspect of the principle that we have drawn upon, and it is only one aspect.  In fact it expressly refers in article 27 to equal remuneration for work of equal value as a concept that is inclusive, inclusive, of the idea that employees with – well, any person with a disability is entitled to just and favourable conditions of work on an equal basis with others and including of course equal remuneration for work of equal value.


All we say about that in giving weight to an equal basis, we say the point of comparison here ought to be the conditions that other employees enjoy in terms of how wages are set.  I suppose the response that Mr Ward might give to that of course is, well, the different paradigm concept that has been elaborated in the December 2019 decision.  You will have gathered from our written submissions that we disagree with aspects of that, not all of that.


The parts that we disagree with are that there is in terms of the way in which work is arranged in an ADE is somehow rather so unique and so different that it stands outside any other kind of employment.  The evidence that we have drawn attention to establishes, in my submission, anyway, that you have work that's provided to employees based on the work that's available and that work is obtained in the usual way by commercial contracts.


True enough that it seems to be work that takes account of the range of circumstances – the nature of the workforce that an ADE has - but then it's difficult to see how that is different from any other employer.  You are here fixing a standard for the whole of the workforce, for the whole of the ADE industry.  You have heard evidence from some but not all ADE employers.


The difference between December 2019 and now is that there is evidence before you about the use of other tools and evidence before you about the way other employers pay their workers.  That is evidence that tells against drawing inferences about the whole of the sector itself.


VICE PRESIDENT HATCHER:  Mr Harding, I think this is going back to general propositions in your case which we fully appreciate from your previous written and oral submissions.  Is there anything new that has arisen today that you need to reply about?


MR HARDING:  No, they are the submissions.


VICE PRESIDENT HATCHER:  All right.  We thank the parties for their submissions.  The parties can anticipate that there will be some written directions emerging about the further steps in the matter, including perhaps further submissions.  Subject to those matters, we reserve our decision and now adjourn.

ADJOURNED INDEFINITELY                                                            [1.23 PM]