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s.156 - 4 yearly review of modern awards


Four yearly review of modern awards







Continued from 18/08/2022



ACTING PRESIDENT HATCHER:  I'll take the appearances, starting in Sydney.  Mr Ward, you appear for ABI and the New South Wales Business Chamber?


MR N WARD:  I do, your Honour, thank you.


ACTING PRESIDENT HATCHER:  Ms Langford, you appear for National Disability Services?


MS K LANGFORD:  Yes, I do, your Honour, thank you.


ACTING PRESIDENT HATCHER:  Ms Carter, you appear for Our Voice Australia?


MS M CARTER:  I do, thank you.


ACTING PRESIDENT HATCHER:  Ms Gruschka, you appear for the Department of Social Services?


MS E GRUSCHKA:  Yes, I do, your Honour.


ACTING PRESIDENT HATCHER:  And then by TEAMS, Mr Harding, you appear for the AD Legal Centre, the UWU, and HSU, and with Mr Kemppi for the ACTU?


MR M HARDING:  Yes, that's correct, your Honour.


ACTING PRESIDENT HATCHER:  All right.  Ms Wiles, you appear for the CFMMEU?


MS V WILES:  That's correct, your Honour.


ACTING PRESIDENT HATCHER:  And Mr Christodoulou, you appear for Greenacres?




ACTING PRESIDENT HATCHER:  All right.  Now hopefully the parties should all have a short document which sets out a summary of the issues we've identified in the outstanding submissions, apart from any minor technical drafting issues.  The parties have had a chance to have a look at that.  Have we missed anything or mischaracterised anything?


MR HARDING(?):  No, your Honour, but can I just indicate in the original directions, 2(d) said, 'Any other matters.'




MR HARDING:  I do need to indicate to the Bench that we do intend to raise another matter, which isn't on your list.


ACTING PRESIDENT HATCHER:  All right, that's fine.  Does anyone else have an issue with the list?


MR WARD(?):  Not at our end, your Honour.


ACTING PRESIDENT HATCHER:  All right.  Ms Carter, does Our Voice Australia wish to make any oral submissions?  And I only ask that because there was a reference to that in the written submission that your organisation wanted to make oral submissions.  Do you wish to say anything at this point?  If you don't, that's fine.


MS CARTER:  I beg your pardon.  Sorry, I'm a little bit hard of hearing, sorry.


ACTING PRESIDENT HATCHER:  Yes.  Does Our Voice Australia wish to make any oral submissions, generally?  That is, in the written submissions which you filed, there was a request to have an opportunity to make oral submissions.


MS CARTER:  I have some that I wish to present in person.


ACTING PRESIDENT HATCHER:  All right, so what we'll do is, we'll hear your submissions.


MS CARTER:  Very well.


ACTING PRESIDENT HATCHER:  We'll go through the running list, and then we'll hear Mr Ward's additional issue.  So, you go ahead, Ms Carter.


MS CARTER:  Thank you.  With leave - I'm not a legal practitioner and I'm standing in for Ms Walsh who is in hospital.




MS CARTER:  A recognised fundamental right is the right to work, but I want to point out this line in article 23 of that great universal declaration on human rights, and it's this.  Everyone has the right to work, to free choice of employment, to just and favourable conditions of work, and to protection against unemployment.  When we last addressed the Bench the rollout of the funding for the 750 employees retrenched from the seven active ADEs in Western Australia was in an embryonic stage.  The active action team is the West Australian arm of Our Voice Australia.


As we advocated in this wage issue for a well managed, representative and well supervised staged transition, we do so from the background of lived experience with the workers, their needs and supports at front and centre of our request for a five year transition timeframe.  We are losing a generation of ADE workers if this proceeds, and it is for the workers, our members, for whom we speak.


They can't speak for themselves.  While the unions and funded advocates with all their resources, refuse to speak for their workers, for the workers' manifest will and preferences.  We thank the Commission for the opportunity to provide an update on the transition of the active ADEs in West Australia, as part of our submission here today on behalf of our ADE employees, their family advocates and carers.  The active transition was funded for 18 months.


This now has twelve months remaining, and despite the claims of the unions and the ADE Legal Centre to be representatives of the employee parties in this new wage system, the only representation for ADE employees in the West Australian active transition is being provided by the family advocates and primary carers.  The unions whose national mandate is to advocate for jobs and fair pay have partnered in this wage issue with the ADE legal centre who are currently campaigning for the closure of the ADEs, which means loss of jobs, on ideological grounds.


Neither party has provided any assistance to the 750 retrenched, active workers.  ADE employees and their family advocates have no access to the resources held by the funded advocacy networks or the unions.  We understand that a national union membership for ADE employees is less than five per cent, possibly close to three per cent.  There is a slightly higher figure for support staff at ADEs, but that can vary at individual worksites.


There are issues of informed consent, lack of legal capacity, and low wage threshold which dictate the low, or the lack of or low, union membership for ADE workers.  Neither the unions nor the advocacy networks purporting to be the employee parties in this wage restructure, represent the workers whom we argue should be front and centre of this entire debate.  In providing this active transition scenario to the Commission, the same scenario will apply throughout whatever transitional timeframe is determined for the new wage structure.


We have argued for a five year wage structure transition timeframe to overcome the issues of distance, or lack of assessors, lack of resources and the need for these ADE workers to have the representation, information and support to which they're entitled and aren't currently getting.  The West Australian closures and restructures provides valuable lessons for the transitional phase of the new wage system because these workers and their family advocates are disempowered by the very system that claims to support them.


That will be repeated with the wage restructure and explains why Our Voice Australia is concerned about the transitional timing and monitoring of the wage restructure, especially at a national and regional level.  No one could condone the way in which active closures occurred, no one.  That's why we have attempted to hold providers more accountable by requiring them to inform their ADE employees and their supporters in a timely manner about significant workplace changes.


That obviously didn't happen in Western Australia and that has exacerbated the distress, fear and insecurity.  We're told the active closures resulted from their need to restructure because of projected financial unsustainability created by the changed NDIS pricing methods, and the expected impact of higher wage costs which the new wage system would impose.  We're not in a position to refute any of that.  We validate our concerns about possible future job losses by referencing to the final port of the Keogh Bay National Supported Employment, Pricing Transition Project in December 2020.


That analysis and financial modelling was commissioned by the National Disability Insurance Agency.  It provided financial modelling on the expected impact of the new NDIS prices.  Pages 2, 9 and 50 to 55 of that report are particularly relevant.  That report has already been provided to the Commission.  The key findings were that the increased employer � employee support would be needed, especially with some business lines and especially in the regions, up to 105 per cent with some business lines.


Consequently, many ADEs would need to change the way in which business lines are structured and NDS supports are delivered.  Those changes would differ depending on the hours worked, the business line, with some carrying more risks than others, and the level of support required by the employees in individual sites.  The Active Action team is the face of our Voice Australia in Western Australia.  They have two representatives on the Transaction Taskforce established by state and federal funding to find alternative employment for retrenched ADE workers.


That funding commitment is for a further twelve months.  We refer to the Bentley worksite where we have strong membership, to give those ADE workers a voice in these proceedings.  The Bentley worksite is the largest of the seven active worksites.  It is, we understand, the most likely to close, to not restructure on site.  It has a heavy desktop assembly and packaging focus and it employs 440 workers.


Over 90 per cent of the workers have a DMI classification of 4 that denotes the highest level of support needs for individual workers.  That was also our impression when we personally visited the site, and our members in 2018.  Despite claims by the unions and AED(sic) Legal Centre, there is no union membership at that ADE.  We understand that's also the case for most of the national ADEs.  There is no external funded advocacy available for them, for the reasons previously stated and historically known.


Parents and carers, as evidenced by the work that the AAT, the Active Action Team have been forced to undertake, have to step in to make sure the workers' voices are heard.  Those with significant intellectual disability and/or complex needs, find it difficult to navigate the system and access it.  The AED business model exists to provide this.  Our West Australian members, the Active Action Team, are providing support and keeping tabs as best they can on the outcomes of the transition.


They run a Facebook group and an email group.  Such is the level of community support and concern with the closures that they've got over 700 followers.  The family advocates do this in their own personal time and at their own cost.  It is the primary communication channel for managing the transition and reporting back to employees, and that rapport then translates back to the Transaction Taskforce.  The Active Action Team continue to provide information to the supported employees and their primary advocates and carers.


Their latest Active Action Team survey was released to members in November this year.  It has been run monthly since the Transition Taskforce was formed.  The survey identifies each of the active worksites and provides a picture of the hours worked by individual responders, without identifying participants.  The family advocates seek to find out what type of employment workers would prefer, what barriers they are experiencing, what ideas they might like to share with the Transition Task Force, what concerns they may have, and whether there is anything stopping them from moving to another job if one can be sourced


While social policy is not the responsibility of the Fair Work Commission, we provide this update because this is the reality of the process of changed management for this group of our members.  We have no reason to believe that will change for them.  Some of the employees have transitioned back to home because of adverse impacts; some have moved on to alternative employment, which is great; some have moved to day programs, which is not work; while some have simply given up.


The Active Action Team provide the grassroots comment that the majority are in a state of confusion and limbo while they wait for the future to unfold.  What has been an issue for those who might have other ADE prospects, is captured in the employee, (Indistinct), and he said, 'My pay compared to what I received at Active will be less at another ADE, even doing the same job, until my trial finishes.'  The active transition continues to be stressful and difficult for everyone.


The job expos funded in this transition process have mostly been managed by those whose disability does not represent the group of retrenched, active employees for whom we advocate.  These expos have been very much touchy-feely affairs but do not recognise the need for effective, knowledge based representation that understands the discrete significant obstacles and hurdles experienced by these active, retrenched workers.  The last thing they need is reverse ableism.


Advocacy and departmental agencies are doing their paid jobs.  When the transition is designated as finalised, whatever the outcome, they will go back to their files and their jobs, while the lives of some of our members will be forever changed, as will those of their family carers.  ADEs are now forced to recruit those with lesser support needs, just to meet the productivity and wage impost, but as Bentley exemplifies and was captured in the Hear Us, See Us Report previously submitted, the needs of these retrenched workers are high support, and their experiences with open employment have in many cases not been positive.


The Active Action Team advise that it is becoming clear from those who are trying to transition to another ADE disability social enterprise, that whilst some have found the move satisfactory, those with higher support needs are finding it more difficult to find another workplace that suits their needs and preferences.  The Fair Work Commission wage restructure with higher wages, coupled with increased support needs of up to 105 per cent in the regions with some product lines, now feeds into the forecast of the Keogh Bay NDIA report.  ADEs are already restructuring just to survive financially in tough economic times, and highly competitive market places.


That was evidenced by Nottsbrook(?) in recent hearings where we have a strong membership base.  Providers are being forced to recruit those with lesser disability support needs, just to survive.  The providers who speak up for their ADE workers are accused of protecting their own jobs.  Family advocates and carers are not resourced because they're not disabled.  Instead, they are accused of putting their families first, and preventing their disabled family member from having a real job and with a real wage, in open employment.


This is the ADE worker background of the wage restructure, especially where providers have already had to restructure their services in order to survive.  What has resulted in this protracted, ideological campaign by activists is the exacerbation of insecurity, and fear for some of our most vulnerable citizens.  We have argued for a five year transitional timeframe for the wage restructure, based on the needs of our members and our capacity to provide them nationally with the support, information and alternatives that they need.


We have provided the example of our West Australian members at Active.  That's the reality of job loss for our members. We have argued for them to be stakeholders in how the restructure is rolled out and monitored.  Giving these ADE workers a voice where it matters is all we can do.  And in this regard, we have tried to do the best possible for them given our lack of resources, particularly with respect to legal advice and representation.  Our members need us to be their voice as the new wage system rolls out under whatever timeframe the Commission determines.


Further to todays agenda we express no specific concerns with the responses by other parties, with the exception of clause 9, page 2 of the union and AED Legal Centre submission.  We raise our concerns about their proposed back pay entitlements.  If this clause as presented is enacted, retrospective wage payment would negate the purpose of the proposed gradual assessment as assessors were trained and available to the sector.  Gradual assessments were intended to protect against wage impost which would create financial unsustainability for providers, as well as to allow for the shortage and cost of independent external assessors.


If the Commission determines that this proposal by the unions and AED Legal Centre has merit and will not increase the viability risks of ADEs, when, where and should it occur, then we suggest that any backdating should be strictly time limited.  This would be consistent with the suggested timeframes of the DSS response to requesting a review of wage entitlements, that is, six monthly.  In this case, we would suggest six monthly, or at a maximum, twelve monthly.


Generally, we would also raise the issue of what appears to be a lack of flexibility in the new restructured wage system.  It doesn't seem to have been covered in the transitional issues, that perhaps service providers can provide some direction.  As advocates, we support ADE workers moving into open employment, if it's their choice and if it works for them.  Our experience is that it doesn't work for most because of the existing and identified barriers in open employment.


The submissions by our members in recent hearings confirmed a high failure rate and return to an ADE setting.  We want to encourage ADE workers to trial other options.  We need to ensure that wage inflexibility does not create a disincentive for them to try other options.  An employee will not want to try and alternative option to their ADE if, on their return, should open employment or any other alternative be unsuccessful for whatever reason, they then have to become a trainee for their old ADE job, take a reduced rate of pay, and face the uncertainty of an unsuccessful trial back at their former ADE worksite.


Previously there was an understanding that trialling a new job in other employment always meant you could return to your previous job if it didn't work out for the employee.  This is unclear with the new wage system and we seek some clarification with that aspect.  We thank the Commission for their understanding over all these years, and trust that our disabled ADE employees will be part of a stakeholder group to ensure that they have a voice in their future as the wage restructure rolls out.  Thank you.


ACTING PRESIDENT HATCHER:  So, Mr Carter, can you tell me, what was the wages tool that was used by Active in West Australia?


MS CARTER:  I can't, I'm sorry.  I can't do that, your Honour.  I could find out for you and let you know during the course of today.


ACTING PRESIDENT HATCHER:  Yes, if you could just send to my chambers an email, that'd be fine.


MS CARTER:  All right, thank you, very much.


ACTING PRESIDENT HATCHER:  Thank you.  All right, I think we propose now to go to the list of outstanding issues, so that if we start off with the ABI and the NDS issues.  In relation to the operative date, I just wish to observe that we made it 1 May, because 1 July has technical difficulties, being the same date as the operative date for annual wage review decisions and (indistinct) drafting issues, but there'd be no difficulty in making it 1 August.  So, would any party want to be heard against us moving the operative date from 1 May to 1 August 2023?


No, all right.  As to the coverage issue, I think there's, at least, for once, a consensus between ABI and the ADE Legal Centre, and the union interests about the definition of the issue of coverage.  Does anyone else wish to say anything about that?


MS GRUSCHKA:  Your Honour, only that there's consensus from the department, as well, for (indistinct).


ACTING PRESIDENT HATCHER:  All right, thank you.


SPEAKER:  I'm sorry, I didn't capture that observation, your Honour.


ACTING PRESIDENT HATCHER:  The department agrees.


SPEAKER:  Thank you.


ACTING PRESIDENT HATCHER:  All right, the next one is the additional classifications, and perhaps we can deal with this together with the point raised by the CFMMEU.  So, Mr Ward, do your interests oppose also the addition of the wooden furniture streams, as well as the timber industry stream and the Timber Industry Award?


MR WARD:  It's not something we're going to die in a ditch over.  I think it's more a case of, we were focussed on one because we had knowledge of that.




MR WARD:  And whilst Ms Wiles is focussed on others because she has knowledge that I don't have, I don't think anything turns on it.  If it needs to be simply a reference to the award and it's all inclusive, we can deal with it as it comes up.


ACTING PRESIDENT HATCHER:  All right.  Does anyone else wish to be heard against the inclusion of the classifications as proposed by the ABI and NDS, and also by the CFMMEU?


SPEAKER:  Save to say, your Honour, that it's supported by my clients.


ACTING PRESIDENT HATCHER:  Supported, all right.  Thank you.  And the last one, Mr Ward, I just think really this is a drafting issue, but does anyone have an issue with that?  No.  All right.  So then, we'll turn to the interests represented by Mr Harding.  So, Mr Harding, with the first bit I'm struggling to understand the distinction you are trying to make here.  Can you elaborate on that, if you can?


MR HARDING:  Only in this way, your Honour.  Again it's not something we'd die in a ditch over.  We've explained the position in the paper, but the intention is to try and focus the attention on the consequences for work of disability circumstances, is a word of broad meaning and could encompass, I suppose, other factors potentially personal to the individual, and the intention here was to narrow and make subjectively, objectives as we could, what we understood was the intention of the Full Bench, which is to align work with the effects of the disability that a person has, so what that manifests as being the consequences for their capacity.


So, to that extent we thought 'effects', may be a more direct way of describing it, and it is reflected in the eligibility criteria that is indeed point 3.1 of Schedule D to the SWS(?).


ACTING PRESIDENT HATCHER:  All right, thank you.  Does anyone wish to say anything about this?


MR WARD:  If I can, your Honour, just briefly, and this is not my extra issue but I do want to suggest a small change in drafting to this clause, as well as responding to Mr Harding.




MR WARD:  But that's only a recent thing in contemplating how to respond to Mr Harding.  I apologise for not raising it earlier.  Could I ask the Bench to have before it, its draft determination.




MR WARD:  And if I could ask the Bench to go to 8.1.1(b)(i), which is the paragraph within which the circumstances/effect debate material on.




MR WARD:  This is the suggested edition and I apologise for the parties not having notice.  The reference in (i) starts with these words, 'Consists of duties and a level of supervision.'  And I pause there.  We notice that in the construction of grade A and grade B, there are actually three notions in grade A and grade B.


There are effectively the duties, there's the supervision and then there's monitoring, and we would like to suggest to the Bench whether or not it might be more complete in (i) to say, 'Consists of duties and a level of supervision and monitoring', which accommodates.  I think that's more for completeness because that seems be really then referential to the three elements that are in grade A and grade B.  So that's the first thing we wanted to say and I appreciate that that's a new proposition.


We would just simply say this.  We didn't have any discomfort with the phrase, 'circumstances.'  It doesn't seem to be fundamentally at odds with the phrase, 'effect', but it does seem to be slightly less linear, and in the context of, 'Considering duties, supervision and monitoring', we just thought it was a phrase that was perhaps more comfortably used.


So, we were actually quite comfortable that when one looks at the definition of 'circumstances', but the definition, if one refers to the Macquarie dictionary, simply says, 'A condition with respect of time, place, manner, agent, et cetera, which accompanies, determines or modifies a fact or event.'  And we just had a sense of comfort that that was a more fitting word to use in the context of what was actually being accommodated and what was referred to in terms of 'duties, supervision and monitoring.'


Again, I don't think the walls of Jericho collapse on this issue, but obviously the Bench chose that word for a reason, and it's a word we are comfortable with.


ACTING PRESIDENT HATCHER:  Right.  Does anyone else with to say anything about either AED and the union's proposal, and ABI's new proposal?  Mr Harding, do you want to respond to Mr Ward's proposal?


MR HARDING:  Your Honour, only, he has expressed a degree of comfort with 'circumstances.'  It may be the Bench had a very specific reason why they chose that word.  Again, what the intention here is, is to give effect to what we understood the Full Bench's intention was.  The dictionary definition tells you that 'circumstances' is a word of broad connotation, and to that extent we thought it much more direct and more clearly expressing the Full Bench's intention to use that word, but it's a matter for the Full Bench.


ACTING PRESIDENT HATCHER:  And the addition of the word, of a reference to 'monitoring'?


MR HARDING:  I don't think we have any difficulty with that issue, your Honour.


ACTING PRESIDENT HATCHER:  All right, than you.  The next one, and I hope we have understood it correctly, Mr Harding, is what I call the back pay issue, so tell me if we've misunderstood this.  But is the position that you say that if somebody wants their SWS assessed becomes entitled to an increase in their rate of pay, they should then be back paid from the date of assessment, back to 1 May, or now 1 August 2023, have I understood that correctly?


MR HARDING:  Well, no, your Honour.  I mean, we drafted it in a way that that expresses as a pay day sum at the point at which assessment occurs, rather than � I suppose the affect is that someone would realise the difference from that period until the point of assessment, but the way it's drafted and is intended to be given effect to, it is, if it turns out that once someone is SWS assessed, they're better off, that there would then be a determination of what the difference is, and that is paid as a sum at the point that assessment occurs.


So, in that sense it is simply intended to ensure that someone who is better off as a result of the application, through not fault of their own, fully realises what the Full Bench intends through the introduction of this system, rather than being in the situation at which they have waited, potentially up until 1 May, 2026 and remained on their current rate of pay, and then find that their new benefit commences from that point in time, without any recompense for the consequence of the SWS assessment being delayed as a result of events outside the control of the employee.


ACTING PRESIDENT HATCHER:  Yes, but that's the same thing as what we usually call 'back pay', isn't it?


MR HARDING:  I suppose so, yes, but I suppose I'm trying to resist the idea of retrospectivity is a point in time assessment which involves a sum.  Yes, to that extent, it's backpay.


ACTING PRESIDENT HATCHER:  All right.  One difficulty may be that employers won't know what the liability is until the person is SWS assessed, and therefore won't be able to make arrangements in advance to fund it.


MR HARDING:  Potentially, I suppose, in which case they have the benefit of the Full Bench's proposal, that if there is viability concern that a particular ADE might face, then they can make application to the Commission.


ACTING PRESIDENT HATCHER:  All right.  Do you want to respond to that, Mr Ward?


MR WARD:  It won't come as a surprise to the Commission that we are opposed to this.  Can I just briefly take the Commission to its decision for 10 November at paragraph 238, and the Commissioner in paragraph 238 says this:


The findings of the report concerning the cost to ADE of implementing the preferred approach which we have earlier summarised, are troubling.  At paragraph 376 and 377 of the December 29 decision, the Full Bench made it clear that it did not intend to envisage that the proposed new wage structure would result in a large increase in labour costs, although it recognised that there will be some increases resulting in the fact that some employees will inevitably become entitled to a higher rate under the new system, and no employee is permitted to have their wage rate reduced.


The report has demonstrated implementation of the Full Bench's preferred approach will cause a significant overall increase in the cost of employing employees with disability, contrary to the Full Bench's intention.


I leave the decision there.  We advocated for a year phasing in period, which was rejected by the Full Bench.  The Full Bench went on in paragraph 239 at point 2, to say this.


The implementation of the rates will be subject to an extended transitional period which we discuss below.


And I leave the decision there.  That extended transitional period, we assumed was to manage and ameliorate the troubling concerns that Bench had around economic impact, and in effect, the Bench has provided a period of transition with a period leading up to when the employees are classified, firstly, into their relevant wage grade, and then there's a presumption of a further three years during which time the SWS's will occur.


It is our assumption that that three year period will mean this.  Some people may go early, and in going early they might be reclassified early, and consequences flow.  It might very well be that certain organisations who are in a health financial state might even encourage (indistinct).  Other organisations might go later, and there might be economic reasons why they go later, and then obviously, economic consequences flow.


Effectively, what the Bench have done there is, they've created a grace period of three years to accommodate the economic impact.  If you look at what's advocated by Mr Harding's clients, Mr Harding's clients, in effect, are telling you to throw the three year transition period out, because the consequence of what they're asking for is really that, and let's use 1 May for a moment, as the date, they're effectively saying, based on being paid lump sum retrospective payments, it's the same as it if all starts on 1 May.


So, your challenge really is this.  You went through an exceptionally considered process to arrive at the original transition period based on the Bench's legitimate and very real anxiety about the cost consequences of the decision.  Do you now wish to abandon that, and in effect, have the decision commence operating from 1 May next year, or 1 August, whichever date it might be.  We say there's no basis for abandoning the approach you adopted in November, in terms of your three year transition.  You formed the view in November that there had to be an extended transitional period.  You should maintain that rather than now abandon that extended transitional period.


There is no comfort can be taken from the Modern Award's objective in Mr Harding's submission.  The Modern Award's objective requires a setting of a fair and relevant minimum safety net for both employers and employees.  It's our understanding in rejecting our eight year proposal and in adopting the proposal you have, you've worked hard to balance the interests of employers and employees in arriving at that fair and relevant safety net and that approach should be maintained.


We say that that is even more the case because of the Bench's preparedness to have this matter brought back on short notice to address any economic issues as they arise.  It is essential that a reasonable transitional period be maintained in the implementation of this economically troubling outcome.  So, for those reasons we would ask you to maintain your three year transitional period.


I will address the submissions from my friend, Our Voice Australia on the five year period.  Obviously it's probably already been inferred that we are comfortable with the period that you have already identified.


ACTING PRESIDENT HATCHER:  All right, thank you.


MR WARD:  Thank you.


ACTING PRESIDENT HATCHER:  Ms Carter, you've already said that you were opposed to this proposition.  Does anyone else wish to say anything about it?  Do you wish to reply to anything, Mr Harding?


MR HARDING:  I do, your Honour.  Mr Ward has taken you to the Full Bench's observations about the economic impact.  He's described the anxiety that has been expressed by the Full Bench about aspects of the wages proposal and how it might be implemented.  But when you look at paragraph 263 of the Full Bench's November decision, the way I read that is that the Full Bench was there responding to concerns expressed by ABI and DSE(?) about the difficulty in having all existing SWS employees assessed under the SWS, and so, the 1 May 2026 was given as the time to do that.


This is not a situation in which, as I understand it, that that period was given as a further accommodation of the Full Bench's concerns pertaining to viability.  Rather, it was a reflection of the uncertainty pertaining to funding SWS assessments of all employees in the industry.  Now, in circumstances where the Full Bench is saying, look, we're not going to continue with the wages tools, we want one system, and that's how it's described, a comprehensive range of minimum wages that include grade A and B, with SWS assessment.


Then all that the backpay proposal does, is to ensure an employee who has to wait until SWS assessment can occur, under the scheme the Full Bench has outlined, gets the full benefit of the wages structure that the Full Bench has outlined.  And that's really all that's intended to address.  So, there's no violence being done in any way to the Full Bench's intentions, the scheme, or in any sense, undermining what the Bench has said about the wages impact of labour costs on employees.


The Bench has properly expressed the view that it will carefully monitor, and this is paragraph 266 in the decision, the implementation of the transitional period, and has then provided a scheme that can address any issues that might arise.  In some respects, all we're here dealing with is an abstract proposition that may or may not have the effect that Mr Ward has outlined.  In any event, it's remedied by the Bench's proposal.


ACTING PRESIDENT HATCHER:  All right, thank you.


MR WARD:  Sorry, your Honour, Ms Langford has just asked me to raise one point about this.




MR WARD:  The Bench might want to be cautious with the notion of lump sum payments because they might have an affect on an individual employee's disability support pension arrangements.  I think it's appropriate that we raise that.


ACTING PRESIDENT HATCHER:  All right, thank you.


MS GRUSCHKA:  Your Honour, from the Department's perspective that is possible, in terms of what Mr Ward has observed.  The precise impact, I don't have instructions on but I am informed that that payment or a lump sum could have affect the DSP.


ACTING PRESIDENT HATCHER:  All right, thank you.  Do you accept that, Mr Harding?


MR HARDING:  I can't really say.  I'm not in a position to make a detailed submission.  I accept that there is a possible impact.  What that is, I don't know.  But there may or may not be.


ACTING PRESIDENT HATCHER:  All right, thank you.


MR HARDING:  And if it is, again, I think before the Full Bench was to � well, the Full Bench would need some concrete evidence, I suppose, of what the impact would be.  It could be small or it could be large, I don't know.


ACTING PRESIDENT HATCHER:  All right, thank you.


MS GRUSCHKA:  Your Honour, there is one other point to note, that the Department is prepared to make further submissions on that if it is of assistance.


ACTING PRESIDENT HATCHER:  All right, that's noted, thank you.  So, the next one is, as I understand it, Mr Harding's proposed (indistinct) with respect to SWS reviews, that you want to retain the initial twelve month review, but at least trade up � you're prepared to suspend, or even dispense with, the subsequent review?


MR HARDING:  Indeed, your Honour.  Again, we understood the Full Bench to be proposing this change due to anxiety about diversion of SWS assessment resources, and we understand that anxiety.  But we have included our proposal to really address something we drew the Full Bench's attention to in our 22 July submission, namely that an employee may improve their performance, as in through the course of performing a job, and so if we're talking here about a new employee who has been subject to some training, and then starts and then works, it seems appropriate to revisit the assessment after that employee has had an opportunity to perform.


We accept that that reasoning has not the same force with respect to the three year period, and so we don't press that, but we do press the retention of the twelve month.


ACTING PRESIDENT HATCHER:  Mr Ward, does that have any attraction?


MR WARD:  I'd have to confess, your Honour, that we struggle to sort of understand how this would be � I don't have a submission for or against it.  All I can say is that as originally written, my clients didn't seem to have any difficulty � their members didn't seem to have any difficulty with how it was originally written.  We struggle to really understand the implications of this.


ACTING PRESIDENT HATCHER:  It's primarily an issue of SWS resourcing, and that's is whether, particularly in the transmission period, whether, particularly for somebody who goes early, as you put it before, they would then have to get another SWS assessment done twelve months later under the award as it currently stands, and it would be stretched back.


MR WARD:  I would think if that's occurring in that three year window, that's going to be particularly problematic for the department because it could be like trying to get everybody through the gate, and as it's trying to get everybody through the gate, all of a sudden it's happened to now go back and re-do the people who went early.  So, I think it's really a logistics and resourcing issue, first and foremost, rather than just being something that is causing my client's members any further anxiety.


MR HARDING:  Can I just address something there, your Honour.  I'm sorry if we've misunderstood it, but we understood that the change would be a permanent change to assessments under the Schedule.  We certainly don't have a difficulty if there is - during the transition period and so I think we propose to, in fact, (indistinct) those assessments during the transmission period, so our submissions are directed to the point at which the wages structure is fully implemented.


ACTING PRESIDENT HATCHER:  All right, so if you go to the draft determination we published, it affects clause D.7, is that correct?


MR HARDING:  Yes, that's right.


ACTING PRESIDENT HATCHER:  So, D.7.1 would be changed back to twelve months, and we would delete D.7.2?




ACTING PRESIDENT HATCHER:  All right.  Does that help, Mr Ward?


MR WARD:  It does, and again, it might be a matter for the department.  All I can say at this stage is, my clients were very comfortable with the two and five year Schedule. If you remove the two, it seems to us � unless Mr Harding is suggesting that - - -


ACTING PRESIDENT HATCHER:  But there is still the capacity to have another one on request, but it removes the third automatic one.  This is distinct from the transition period, so that SWS assessments during the transition period are dealt with in Schedule I.2.  Clause D.7 addresses what happens after the transition.


MR WARD:  After the three years.  I have to say, I don't have any instructions one way or another.  All I can say at this stage is that my clients were aware of the two and the five year Schedule and were not uncomfortable with it.  I'm content to leave it to the Commission.


ACTING PRESIDENT HATCHER:  All right.  Does the Department wish to say anything about this?


MS GRUSCHKA:  Just briefly, your Honour.  The Department agrees with the proposal to actually retain the twelve month (indistinct) period.  We don't have a position as to whether a further assessment should be at three or five years.  But I do note that obviously the delivery of the SWS assessments will be closely monitored by the department during whatever period is determined by the Commission, and we will be prepared to raise anything (indistinct) with implementation with the Commission as per its invitation.


ACTING PRESIDENT HATCHER:  All right, thank you.  The next thing is Our Voice Australia's proposal to extend the transitional period from three years to five years, so Ms Carter, you've addressed that.




ACTING PRESIDENT HATCHER:  Does anyone wish to say anything about that?  Mr Ward?


MR WARD:  All I can say, your Honour, is that I think it's implicit in what I have already said, that we're comfortable with what's � subject to submissions we've made, we're comfortable with the original proposal.  It's always going to be a challenge to get that right.  My client has taken very real comfort from the observations the Bench have made in paragraph 266 of the November decision.


And as we understand those observations, the paragraph is in these terms.  'Because of the cost implications of the introduction of the new wage structure, we propose to carefully monitor its implementation during the course of the transition period.  If there is evidence that the implementation of the new wage structure is endangering the viability of (indistinct) is genuine, or in a particular case it should be brought to the attention of the Commission, the Commission will, in application of its own initiative, consider appropriate variations', and it goes on.


It is clear that the Commission will be ready and available, subject to being informed or subject to application, to step in either at large or, as the Commission stated, in a particular case.  So if circumstances such as the West Australian example arise again, and the motivation for the problems that are being experienced is this decision and this new wage structure, I think one would take comfort from the fact the Commission is here to hear that and to consider it.


So, in those circumstances all I can say is that we were comfortable with what the Commission had proposed.


ACTING PRESIDENT HATCHER:  I must say, I'm not persuaded that an active case is connected with this, but - - -


MR WARD:  I'm not either.




MR WARD:  Sorry, your Honour.  I'm saying, if something of that ilk came up, and what motivated it was this new wage process, it's at that stage that the Commission might look into it, subject to application or whatever.  No, I wasn't drawing a link that the West Australian example was motivated by what is occurring in these proceedings.  I wasn't doing that.  Sorry, your Honour.


ACTING PRESIDENT HATCHER:  All right.  Mr Harding, do you want to address this?


MR HARDING:  I'm very happy to agree with Mr Ward.


ACTING PRESIDENT HATCHER:  All right.  Does anyone else wish to say anything else?  No?  All right, now we have the Department's proposal, right at the death, I might add.  But does anyone want to say anything about the Department's proposal?


MR WARD:  If we can, your Honour.  With respect to the Department, we are not uncomfortable with the notion of creating a right to request to have your grade reviewed.  What we are uncomfortable with is why that has to be done in two and a half, three pages.


What we would propose is an alternative by amending clause 32, 'Rights of work for supported employees', and can I provide a copy of what we propose?




MR WARD:  I apologise for not distributing this earlier.  This was sort of finished, this morning.  Now I've just realised Mr Harding's � Ms Simmons should be on the line somewhere and I'm assuming that she's now going to email Mr Kemppi and Ms Wiles, what I have handed up but I'll quickly take the Commission to it.  The Commission will recall that this was part of the prior decision with the inclusion of the rights of work clause. What we have proposed is, we have added in a new 32.4(d), to include a reference to, 'the grade into which an employee is classified in the Schedule A classifications.'


We've also then proposed the addition of a 32.5 in these terms.  'Employees have the right to request a review of the grading to which they have been classified by their employer.  Where such a request is made the employer shall discuss the matter with the employee and provide a written response to the inquiry, which includes the reasons for the grade.  If the employee is not satisfied with the employer's response, the employee can pursue the matter further in accordance with the dispute resolution process in clause 30.'


So, we would think that there's no issue with an employee having a right to request a review of their grade, we're comfortable with that.  But we're just looking at one for some greater economy of process and language, and we actually think it sits best in this new clause, the rights at work for supported employees, because it's akin to creating a further right for those people in their employment.  If the Commission pleases.


ACTING PRESIDENT HATCHER:  Thank you.  Ms Carter, do you want to say anything about this?


MS CARTER:  I beg your pardon, sorry?


ACTING PRESIDENT HATCHER:  Do you want to say anything about this proposal?






MR HARDING:  Only, we don't have Mr Ward's proposal as yet, so I can't really comment other than to say that in concept, it seems right to say, as he does, that such a thing is better accommodated in 32.  We are otherwise quite happy with the idea of there being a process for reclassification, and we like features of the Commonwealth proposal although we had some proposed amendments that we wanted to make for the purposes of clarity, and I wonder if we could be given leave to have a look at the proposal for Mr Ward and compare that to what the Commonwealth has suggested, and communicated with the Bench if need be, once this proceeding finishes today.  It's a bit difficult to consider this on our own, but in concept we think it's a great idea.


ACTING PRESIDENT HATCHER:  All right.  Will close of business, Thursday be sufficient for that?




ACTING PRESIDENT HATCHER:  No, close of business, Friday.




ACTING PRESIDENT HATCHER:  Yes.  All right, and finally, I just wanted to check one thing.  In the draft determination we have extrapolated grades A and B for casuals, overtime, weekend penalties, shift work, et cetera.  Is that strictly speaking, necessary?  That is, to - - -


MR HARDING:  It's a good question, your Honour.  We undertook some inquiries this morning.  Can I indicate this, that shift work is quite rare but it does occasionally happen, particularly in periods of high demand, such as leading up to Christmas.  Weekend work can occur, particularly in relation to people with a disability undertaking cleaning work.  Quite often that might be done on a weekend.


The notion of the working of overtime is very unusual but I wouldn't want to say it never happens.  It is possible but given the nature of the disability of an employee, it's a very rare occurrence.


ACTING PRESIDENT HATCHER:  I think that's sufficient to deal with that issue.  Does any party wish to raise any other issues?


MR WARD:  I do, your Honour, if I can.  I do, a little apologetically � this is one of those moments where I sat down, sort of, last night and did a last run through, and I'd like to think that I'm about to be told that I don't need to be concerned about what I'm raising but it's possible that I might be.  Could I ask the Commission and parties to have the draft determination before them, and can I indicate that � I'd ask the parties to go to Schedule A, Transitional Arrangements.


And I will commence this by taking the parties to I.2.1, which is in these terms:


This clause applies to any employee employed as at 1 May 2023 - - -


Or whatever date the Commission ultimately determined:


To who Schedule D supported (indistinct) applies who has not been the subject of an SWS assessment prior to 1 May 2023.


It is our assumption that what the Bench intend is that as we move people off other wages tools and we grade them, I'm just going to say for present purposes, into grade A and B, although of course they might be graded elsewhere, that obviously those people who are graded into grade A and B will then be the beneficiary of an SWS assessment.


ACTING PRESIDENT HATCHER:  I think the point is that they have to, so if - - -


MR WARD:  Yes, well - - -


ACTING PRESIDENT HATCHER:  If an employer forms the view that somebody is doing the full capacity of grade A, for example, then there is no need to have an SWS assessment.


MR WARD:  This is the issue.  Can I ask the Bench then to go to D.3.1.  And I note, without any criticism, that D.3.1, I think is redrafted from its original form in the 2019 decision and drafting proposal � I don't do that by way of criticism, I � when we looked in to the decision there didn't seem to be too much commentary on that but it does seem to have changed � D.3.1 is in these terms.


This Schedule applies to employees with a disability who are unable to perform at the required productivity capacity because of the effects of disability.


And I would ask the Commission to focus on 'required productivity capacity', and I'm going to give an example and then use that example to explain my anxiety.


Let's assume that we employed David who has a disability, intellectual impairment of some form, and we've created a job for David where David sorts spoons, knives and forks into a cutlery box, and I think from recollection that was actually job that we saw in the original inspections � now let's assume that David can only do one knife, one fork, one spoon, three times in a minute.  It's reasonable, or its arguable that the required productivity capacity for David in that created job is three cycles in a minute, even though a person without David's disability could do 60, and so we're just somewhat anxious that the notion of required productive capacity in a job that is created for David, could be construed to be the actual productive capacity, even though when compared to somebody without a disability, they're demonstrably less productive.


Now that seems to us, to be available on a reading of the words but it doesn't seem to us to have been the intention of the Bench.


ACTING PRESIDENT HATCHER:  I think it's implicit that it's the required productive capacity for their classification.


MR WARD:  So, what we say to the Bench is, it would be perhaps appropriate to give some consideration as to whether or not that language needs to be clarified so that with respect, and I'm not looking at Mr Harding when I say this, I don't find myself in a year's time, in some very particular technical argument where we all knew what we meant but somebody's arguing, well, that's great but that's not what the words say.


Another way of dealing with it would be to say, 'productive capacity compared to somebody without a disability', and I leave it for the Bench as to how it might resolve it but I think that probably does require some focus in terms of what was intended in the decision, and in Schedule I, has given full fact.  If the Commission pleases, that was the extra matter we wished to propose.


ACTING PRESIDENT HATCHER:  All right, does anyone wish to respond to that?


MR HARDING:  From our point of view, we hadn't read it in that way.  We read it in the way that you have articulated, Vice President.  If those additional words would cure the problem that has been raised by Mr Ward, then they perhaps can be added but that's the way we ran it.


ACTING PRESIDENT HATCHER:  Any other issues?  No?  All right, I thank everyone for their submissions.  I feel like this is, I think, the end of a very long journey.  Some people have fallen by the wayside and other new faces have come in, but thank you all for your assistance over these years.  We'll reserve our decision and we'll now adjourn.

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