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Fair Work Act 2009�������������������������������������� 1055625




AM2013/33 AM2014/286 AM2013/34 AM2013/37 AM2014/286


s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Supported Employment Services Award




9.36 AM, FRIDAY, 9 FEBRUARY 2018


Continued from 8/02/2018



VICE PRESIDENT HATCHER:  Is Ms Svendsen the first witness for today?


MR HARDING:  She is, your Honour.  Perhaps before I go to Ms Svendsen I ought to declare some embarrassment that I was under the impression that different witnesses were going to be called by my opponents this afternoon and I've been apprised that now Ms Powell and Mr Daley are coming.  I just wanted to flag that.  I don't expect that they'll be got to until after lunch and I will advise the Bench of my position after that point.


VICE PRESIDENT HATCHER:  Mr Daley didn't actually make a witness statement, it was only a submission.  Why - - -


MR HARDING:  No, it's a submission but there's factual elements in the submission and that was the basis upon which we asked him to be in attendance, your Honour.  But a question in my mind is whether we do need to cross-examine him and I will - I've had a conversation with your Associate who tells me that he's coming in by phone.




MR HARDING:  That the proposal is that she call him sometime after 2 o'clock, in which case we'll be in a position to advise the Bench about whether we require him for cross-examination.




MR HARDING:  On that basis I call Ms Svendsen.




THE ASSOCIATE:  Please state your full name and address.


MS SVENDSEN:  Leigh Svendsen, 255 Drummond Street, Carlton.

<LEIGH SVENDSEN, AFFIRMED���������������������������������������������������� [9.38 AM]

EXAMINATION-IN-CHIEF BY MR HARDING����������������������������� [9.38 AM]

***������� LEIGH SVENDSEN������������������������������������������������������������������������������������������������������������������ XN MR HARDING




MR HARDING:  Ms Svendsen, is your name Leigh Svendsen?‑‑‑It is.


Is your business address 255 Drummond Street, Carlton?‑‑‑It is.


Have you made a statement for the purposes of these proceedings dated 21 November 2017, consisting of 24 paragraphs?‑‑‑Yes, I have.


Do you wish to make any corrections to that statement?‑‑‑I do.  At paragraph 15(c) the minimum weekly rate is stated at $81.  That's probably about three years old.  It's $84 now.


Thank you.  Any other corrections to that statement?‑‑‑No, there aren't, I don't believe.


With those amendments is your statement true and correct?‑‑‑It is.


I tender the statement, your Honour.






VICE PRESIDENT HATCHER:  Statement of Leigh Svendsen dated 21 November 2017 will be marked exhibit 12 - exhibit 13, I'm sorry.



MR HARDING:  Ms Svendsen, have you made a further statement for the purpose of this proceeding dated 14 December 2017, consisting of 11 paragraphs and a number or at least one annexure, two annexures?‑‑‑Two annexures.  I have.


Do you wish to make any corrections to that statement?‑‑‑Only that the address, which I think is redacted on the website is completely unknown to me and I didn't notice when I was making the statement.

***������� LEIGH SVENDSEN������������������������������������������������������������������������������������������������������������������ XN MR HARDING


Presumably the business address remains the same?‑‑‑It does.


Drummond Street, Carlton?‑‑‑It is, yes.


Apart from the address, is the statement otherwise true and correct?‑‑‑It is.


I tender that statement, your Honour.


VICE PRESIDENT HATCHER:  Further statement of Leigh Svendsen dated 14 December 2017 will be marked exhibit 14.



MR HARDING:  Thank you, your Honour.



CROSS-EXAMINATION BY MR WARD����������������������������������������� [9.40 AM]


MR WARD:  Thank you.  Ms Svendsen, I don't need to introduce myself so - - -?‑‑‑You certainly don't, Mr Ward.


Look, I only have a few questions for you this morning.  You say in your statement that you're the senior national industrial officer and that the principal responsibility is for the Four Yearly Award Review.  Does your job involve anything else?‑‑‑It certainly does.  I'm the compliance officer for the Health Services Union, among other things.


What does that mean?‑‑‑That's compliance for the purposes of the Registered Organisations Commission and all the reporting obligations that go with it.


Do you have any involvement in bargaining?‑‑‑Not any longer.  I've been - I was involved in bargaining for many years, first with the Nurses Federation and then later with our number 2 branch in Victoria.

***������� LEIGH SVENDSEN���������������������������������������������������������������������������������������������������������������������� XXN MR WARD


When did you stop having involvement in bargaining?‑‑‑When I went to the national office and the national office currently doesn't do any bargaining, so I'm only now involved in bargaining in terms of discussions with our national industrial officers across the country and advice about what's coming through, what the awards are and the new minimum standards, that sort of thing.


So you play a kind of senior betting role about agreements?‑‑‑No, I don't.  The agreements don't normally come to us except where more than one branch is involved and then we have a more active role, but it's still fairly passive now.


Other than that am I right in saying you're essentially the principal industrial advocate for the union?‑‑‑At a national level.  I mean all of the - all of the branches have industrial officers and they actually manage their industrial case load and work for that branch, and so in fact other than the fact that I appear much more before Full Benches, they're probably in the Commission more than me except for modern awards.


In your current role do you have much direct involvement with HSU members?‑‑‑No, very little.


Very little.  Can I take you to your statement at paragraph 4.  You talk about where your membership is and you use a phrase in the first line, "disability services".  That's a broader statement than a reference to ADEs isn't it?‑‑‑It is a broader statement than the reference to ADEs.


What would that include?‑‑‑That includes provision of all disability services.  So for instance, supported accommodation services, day services, ADEs, it includes in-home and out-home client services.  There's a fairly or there was a fairly - it's changing under NDIS.  There was a very robust client service delivery here in Victoria that provided services in-home.


Public and private sector?‑‑‑Public and private sector, although private tends to be NGO.  There are very few private private - private for profit providers in disability.


Mostly not for profit?‑‑‑Mainly.


When is the last time you spoke to a member of yours who actually worked in an ADE?‑‑‑Probably about four or five months ago.

***������� LEIGH SVENDSEN���������������������������������������������������������������������������������������������������������������������� XXN MR WARD


That's in relation to this case?‑‑‑No, it wasn't specifically.  It was - they were looking for some information around the Supported Employment Services Award, so I just was talking to them about that.


So it was technically advice about the award?‑‑‑Mm-hm.


Was that person, did they have a disability or were they without a disability?‑‑‑They were without a disability.


Without, yes.  When is the last time you spoke to somebody with a disability who works in an ADE, who's a member of yours?‑‑‑I was about to say Wednesday.  I can't give you a date.


That's fine.  Now in paragraph 13, can I take you to that?  Paragraph 13 says:


It is a public fact that several SES -


And that's the new word I think - - -?‑‑‑Supported Employment Services.




already successfully utilise the SWS.


Is that a statement about ADEs where you have members?‑‑‑It's a statement both about some ADEs that I have members in and a statement of DSS's evidence - Department of Social Security's evidence - plus reports.


So some of that is about - - -?‑‑‑Some of that is about my own knowledge - - -


Stuff you've read?‑‑‑ - - - some of it comes from reports, yes.


You go on and say:


It's also a matter of public record that some SES transition from BSWAT to the SWS.

***������� LEIGH SVENDSEN���������������������������������������������������������������������������������������������������������������������� XXN MR WARD


Again, is some of that personal knowledge and some of it what you're read?‑‑‑Actually no, it's personal knowledge because they transitioned as a consequence of the application we made to remove the business services wage assessment tool and the transition process that we agreed in conference, and we actually oversaw the - before Booth DP at the time, the - well directly oversee but the information came through to those conciliation conferences as people made application to transition from BSWAT to other tools, and some of them did so - transition to the supported wage system there.


Are you talking there about ADEs where you have members?‑‑‑You're asking me to remember - - -


If you can't remember just say so?‑‑‑ - - - which ADEs transitioned and no, I can't remember that.


So you have no direct recollection of an ADE where you have members that transition from BSWAT to SWS?‑‑‑No, I don't.


Am I right in saying that before the Nojin case, which I appreciate you are familiar with, that before the Nojin case your union didn't have any difficulties with BSWAT as a wage assessment tool?‑‑‑No, you're not correct.  We definitely had a problem with it from the moment - well from its first development.


So can you tell me why would your union if it had a problem from its first development have put BSWAT into enterprise agreements your union made?‑‑‑Because it was developing enterprise agreements with people who were using that tool and so they then put those tools in the EAs because that's what the service wanted.  Bargaining's not a matter of us enforcing what we want.  It's a matter of agreement between the parties, so some things you can't change.


So if I can just understand that.  Your union has always had a policy opposition to BSWAT?‑‑‑It has always had a policy opposition to BSWAT.


But in negotiating agreements when employees, which include some of your members, voted on those agreements.  They voted to have an agreement with BSWAT in it?‑‑‑I don't recollect any that did in Victoria but that doesn't mean there weren't any, because during the time I was with the number 2 branch, the majority of those agreements were - they're still dealing with - 2006 agreements.  So a lot of those agreements were made under work choices and were not particularly robust agreements, but I can't remember any that we made subsequent to that.


Do you have any knowledge of an agreement made for a company called Colony 47 in Tasmania?‑‑‑No, I don't actually.

***������� LEIGH SVENDSEN���������������������������������������������������������������������������������������������������������������������� XXN MR WARD


Well I won't put it to you, I won't put it to you.  I'll deal with that when we make our submissions, that's fine.  No further questions.




MR STROPPIANA:  No questions for the witness, your Honour.


VICE PRESIDENT HATCHER:  Does anyone else want to - Mr Christodoulou?




MS WALSH:  Thank you, your Honour.


VICE PRESIDENT HATCHER:  Anyone in any other state?  Any re-examination, Mr Harding?  Sorry, Ms Walsh.

CROSS-EXAMINATION BY MS WALSH��������������������������������������� [9.49 AM]


MS WALSH:  Good morning, Ms Svendsen?‑‑‑Ms Walsh.


I'll commence by stating that I'm sure you understand that we represent - that I'm representing on behalf of our members those with intellectual disability working in ADEs.  You understand that?  We have previously put that to the court?‑‑‑I understand that you represent members with family and disabilities.


Thank you.  If I could just take you to the original submission by the HSU, I notice it isn't signed off by you but that still carries your imprimatur I guess and that's where we're coming from in relation to the original submission?‑‑‑Yes.


Dated 21 November, signed off by Rachel Laisha?‑‑‑Leibhaber.


Leibhaber?‑‑‑Sorry, I will just go to it.  I think I have it here.  I know the submissions, Ms Walsh, but I don't have a copy before me.


I don't have an unmarked copy.  I only have the one copy.


VICE PRESIDENT HATCHER:  Just hold on a second.

***������� LEIGH SVENDSEN�������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


MS WALSH:  It's not a terribly difficult question.


VICE PRESIDENT HATCHER:  Just ask the question, we'll see where we go?‑‑‑See if I need it.


MS WALSH:  I'm sure Ms Svendsen won't need.  The issue that I want to address is that - it's the one in relation to hearsay evidence wherein the last paragraph says:


This is particularly so in a workplace where there is little or no union penetration and thus little or no justification for fearing some form of reprisal for taking a public stand against the union.


The point I want - that we wanted to make was simply that the award does recognize where there are issues of conflict or significant workplace change, that there is a need for an employer to involve a parent, guardian, family career or representative of those with - you know, who are unable to self-advocate or have limited legal understanding?‑‑‑Is that not a quote from a Full Bench case, that you're referring to?


VICE PRESIDENT HATCHER:  What paragraph was it again, Ms Walsh?


MS WALSH:  It's paragraph 23 of that.  I think you are right, it is - - -


VICE PRESIDENT HATCHER:  Just hold on a second, Ms Walsh.  I'll just give my copy to the witness.


THE WITNESS:  It is a quote but it goes to the issue of hearsay evidence before the court.


VICE PRESIDENT HATCHER:  Paragraph 23, I think?‑‑‑I have it.  It goes to the issue of how to - how the court should judge hearsay evidence, yes.


MS WALSH:  That's right.  It's the (indistinct), you've been called up (indistinct), legal precedent?‑‑‑Yes.


So if I could then move to the next paragraph on this which is 24, and go to the - do you want time to read that, Ms Svendsen?‑‑‑No, it's all right, that's fine.

***������� LEIGH SVENDSEN�������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


There are two comments put into witness statements from Mr Burridge, manager of Centre Care and a Ms Constable, CEO of ASTERIA Business Services, which relate to the issues for families and careers if in fact family members no longer were able to attend work, and also the issue from Ms Constable raises one about "creates the work, creates a positive environment, a can do attitude".  All I wish to raise in that particular phrase is that where we as family careers are coming from is that there are many people who work in supported employment, particularly in our ADEs. Some do not have family careers, some in fact have siblings and there's not - there hasn't been a lot of consultation by the union or in fact by the advocacy services to engage those people in some of these workplace situations, so therefore the responsibility by default I guess if for no other reason sometimes falls back to the service provider, who appears in some cases to be the only person who can advocate for some of those - - -


MR HARDING:  This is not a question, it's a speech.


MS WALSH:  Sorry.


VICE PRESIDENT HATCHER:  Ms Walsh, you actually need to ask a question.


MS WALSH:  Well, I guess the question is, would you consider under those circumstances, would you consider that family careers direct input as per our witness statements is not hearsay?‑‑‑No.


MR HARDING:  It's a legal question.


THE WITNESS:  Yes, it is.


MS WALSH:  If I could then move to your original statement and Mr Ward has covered some of these issues.  If I could go to 1 to 3 where you advised the court of your experience as a national industrial officer.  Ms Svendsen, do you have any business qualifications as such in relation to some of the issues that are emerging, and that's the viability issue.  So do you have in your role, do you also have some business qualifications which you haven't mentioned here?‑‑‑No, I don't have business qualifications but then I haven't being given any evidence in relation to viability either.

***������� LEIGH SVENDSEN�������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


Your point is taken. Further, if we go to point 4 and within that - and Mr Ward advanced that a bit further, my question was going to be disability services but in your current position you do have a lot of involvement with families, careers, community, with your members.  Is that correct?  Can we assume from that statement that your members have a lot of involvement with - you have with ADEs, with some of those community services - - -?‑‑‑Yes, you can assume that our members do have - - -


Thank you.  If I now move to point 10 of that same - of your statement, and that's the first statement, Ms Svendsen, submitted on 21 November. Point 10?‑‑‑Yes.




During the conferences an agreed position was reached removing the BSWAT from the Supported Employment Services Award.


Would you state that there was not - there was no difficulty from participants at the conference, in relation to the eventual removal of that BSWAT tool?  There was an agreed position, I agree with you there, that the BSWAT would be removed.  But could I further state are you aware and you were part of the conciliation process, that there was condition put on the approval from our members that it not be mandatorily removed.  That wasn't to be the only option?  Do you recall that?‑‑‑I'm not actually quite sure what you're asking me, Ms Walsh.


Well your point says:


There was an agreed position - - -


?‑‑‑There was.


For the removal of the BSWAT.


And that's correct, there was?‑‑‑There was.

***������� LEIGH SVENDSEN�������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


There was an agreed position from our members and we agreed to that but we then put a rider in that said that it was not to be - that the twist was not to be the only tool that replaced the BSWAT?‑‑‑What was said by each of us in conference may or may not be reflected in the agreed orders.  The agreed position was clearly the one that BSWAT was removed. There were a lot of things said in conference that were not reflected in every statement that was issued publically or the orders that were agreed in relation to the removal of the BSWAT or the transitional phasing in of - well, phasing out I should say, of the business services wage assessment tool and the time allowed for people to transition.  But it was not a product of the public agreement and papers and order.


Thank you.  Mr Ward has covered - if you go to point 13, then it's the - the phraseology used is "several SESs", "some SESs" being supported employment services within that paragraph.  Would it be true to say that some or several actually represents a minority in the wider pool of employees and services?‑‑‑My understanding is that figures in relation to who uses what are somewhat opaque and my understanding is that the people who are using supported - the supported wages system in ADEs are in the minority, but then I'm not sure that there is actually a majority tool.  That is more than 50 per cent of supported employment services using any tool.  But as I said, it's opaque who's using what tool.


Moving onto page 2 of that - page 2 of - this is your first - no, we're doing that one.  Page - just a moment, I'll get that for you - of your further statement, Ms Svendsen, which is dated 14 December.  There's just two small points there I'd like to cover, and one of those is point number 6 on the next page though it shows, it's not on that.  You say that:


The conciliation or modification was to identify what modifications could and should be made to the SWS to promote its more widespread adoption by SESs as to the wage assessment tool.


I would like to go back to the word "promote" which is I guess the atmosphere under which we were involved.  Promote, would you not agree is somewhat different to mandatory?‑‑‑It's completely different.  It's not really the point though is it?


Well it is if you're looking at the end result.  It is - what actually happened was instead of a promotion - - -?‑‑‑I'm not actually talking about that.  I'm talking about what we were doing in relation to the modifications at that particular time.


We were promoting it and we agreed to all of those things on that basis.  That it would be - it would enable some SES, some services who could possibly use it, it would suit their application, they would be able to do it.  And finally, if we go to point 9 which you have raised there:


As these review proceedings demonstrated there is resistance to the adoption of the SWS as modified by SES employers.  However, the SWS has been the subject of extensive consultation with a view to making it the wage assessment tool for use in supported employment services.

***������� LEIGH SVENDSEN�������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


Would it be true to say that none of that or very little of that consultation in any of those proceedings involved family carers, or indeed some of the workers within those services themselves, by the parties actually making the application, and which you - - -?‑‑‑The family carers were involved through your organisation in nearly every single one of those conferences.


They were but we there - we were and remained involved at our own cost because there was no significant consultation with any of those services and the families within those services at a national level.  Is that a reasonable statement?  Was your union involved?‑‑‑I have no idea about your organisation's funding of things.  We all remained there, as I understand it, at our cost.


Well, yes, that's not quite accurate but yes.  So thank you very much, Ms Svendsen?‑‑‑Thank you.


VICE PRESIDENT HATCHER:  Right.  Any re-examination?


MR HARDING:  No, your Honour.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Ms Svendsen, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW��������������������������������������������������������� [10.03 AM]


Mr Cain is the next witness, Mr Harding.


MR HARDING:  He is, your Honour.  There are three statements that have been filed for Mr Cain.  One of them, the last, has some redactions arising from quotes from the demonstration MS- - the demonstration project that was tendered yesterday, I think it's amongst exhibit 3 from recollection.


VICE PRESIDENT HATCHER:  Just hold on a second while we locate all those, Mr Harding.


MR HARDING:  Thank you.


VICE PRESIDENT HATCHER:  So you're talking about the statement of 14 December?

***������� LEIGH SVENDSEN�������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


MR HARDING:  Yes, I am, your Honour.  So I have unredacted copies available to distribute.


VICE PRESIDENT HATCHER:  Right, well the version we have is not redacted.


MR HARDING:  Then I don't need to hand them up to the Bench.


VICE PRESIDENT HATCHER:  Is there any need for a confidentiality order to be made in respect of the statements?


MR HARDING:  No, your Honour.  The report that he quotes from was tendered, there was no objection to its tender. It's an open document.


VICE PRESIDENT HATCHER:  Right.  Well, perhaps you can distribute those to the other parties.


MR HARDING:  I call Mr Paul Cain.


VICE PRESIDENT HATCHER:  Come forward, Mr Cain.


THE ASSOCIATE:  Please state your full name and address.


MR CAIN:  Paul Cain, 2 Fantail Loop, Eaton, Western Australia.

<PAUL CAIN, AFFIRMED��������������������������������������������������������������� [10.05 AM]

EXAMINATION-IN-CHIEF BY MR HARDING��������������������������� [10.05 AM]




MR HARDING:  If I can hand up a folder consisting of all the statements and the annexures to assist Mr Cain.




MR HARDING:  Mr Cain, is your name Paul Cain?‑‑‑That's correct.

***������� PAUL CAIN������������������������������������������������������������������������������������������������������������������������������� XN MR HARDING


Your business address is?  What is your business address?‑‑‑2 Fantail Loop, Eaton, Western Australia.


Have you prepared a statement for the purposes of this proceeding headed "Statement of Paul Cain", consisting of 94 paragraphs, signed by you but undated?‑‑‑Yes.


Would have been October 2017?‑‑‑Yes.


Do you wish to make any corrections to that statement?‑‑‑No, I do not.


Is the statement true and correct?‑‑‑Yes, it is.


I tender the statement, your Honour.


VICE PRESIDENT HATCHER:  What was the date that was filed?


MR HARDING:  October 2017.


VICE PRESIDENT HATCHER:  Statement of Paul Cain undated but filed in October 2017 will be marked exhibit 15.



MR HARDING:  Thank you, your Honour.  Mr Cain, did you file here for the purpose of this proceeding a further statement dated 21 November 2017, consisting of 246 paragraphs and quite a significant number of annexures?‑‑‑That's correct.


Do you wish to make any corrections to that statement?‑‑‑No, I do not.


Is that statement true and correct?‑‑‑Yes, it is.


I tender that statement, your Honour.

***������� PAUL CAIN������������������������������������������������������������������������������������������������������������������������������� XN MR HARDING


VICE PRESIDENT HATCHER:  The further statement of Paul Cain dated 21 November 2017 will be marked exhibit 16.



MR HARDING:  Finally, Mr Cain, have you prepared another statement dated 14 December 2017 headed "Further statement of Paul Cain", comprising 58 paragraphs?‑‑‑Yes, I did.


Do you wish to make any corrections to that statement?‑‑‑No, I do not.


Is that statement true and correct?‑‑‑Yes, it is.


I tender that statement, your Honour.


VICE PRESIDENT HATCHER:  Further statement of Paul Cain dated 14 December 2017 will be exhibit 17.



MR HARDING:  Thank you, your Honour.



CROSS-EXAMINATION BY MR WARD��������������������������������������� [10.08 AM]


MR WARD:  Mr Cain, we've met before haven't we?‑‑‑I don't know, I'm sorry.  I can't remember you.


Let me introduce myself?‑‑‑My apologies if I - - -


No, that's okay.  My name's Nigel Ward and I appear in these proceedings for a number of employer industrial interests.  Now can I just start with where you work.  You say in your first statement you're the director of research and policy at Inclusion Australia.  Does that mean you're the head of Inclusion Australia?‑‑‑No, it's not.  I'm a staff member, I'm not a CEO or a board member.  I'm a staff member.

***������� PAUL CAIN���������������������������������������������������������������������������������������������������������������������������������� XXN MR WARD


What is the purpose of the role of the director of research and policy?‑‑‑The purpose of that role is to be across national and international research on best practice in employment policy, in employment practice and to represent Inclusion Australia on that issue.


Inclusion Australia, that's an independent advocacy group?‑‑‑It's an independent national peak association.


So it has members?‑‑‑It has members.


What sort of people are its members?‑‑‑Members include state agencies or state associations that represent people with intellectual disability and families who are not at a state level.  Their members include people with intellectual disability and families of people with intellectual disability.


How is it funded?‑‑‑At the moment at a very small amount from the commonwealth government through the Department of Social Services, and you'll have to forgive me I don't know the exact amount because I'm not on the board or anything.


No, that's fine?‑‑‑And we also have some funding through a variety of different projects that are through our state members and the national group itself.


Thank you.  That funding through state members is that public funding or private funding?‑‑‑It's mostly public funding.


Just so that I can understand this, the views you express today are they your personal views or are you expressing the views of Inclusion Australia?‑‑‑They're my personal views.


Personal views.  Now you say in paragraph 2 of your first statement that you've been involved in the disability sector for some 30 years.  Is that the totality of your working life?‑‑‑It's probably the bulk of it.  I first started in the disability service sector around 1988, helping children with disabilities be included into day care centres.  But I did various bits of work before that - - -


I'm not interested in your gardening job?‑‑‑But, yes, it's more or less like that.  But yes, so ever since then I've been working with the disability sector.

***������� PAUL CAIN���������������������������������������������������������������������������������������������������������������������������������� XXN MR WARD


So you've never worked in the commercial side of the world, business side of the world?‑‑‑No.


I don't want to brand you inappropriately but would I be right in calling you a disability policy advocate?‑‑‑That would be fair enough, yes.


Now I think you say some of this in your statement, just for clarification.  You're not a qualified SWS assessor?‑‑‑No, I'm not.


I think you say in your statement you've got no industrial relations qualifications?‑‑‑That's correct, I don't.


Am I right in saying that you don't hold any academic positions?‑‑‑No.  Do you mean in terms of like in an academic institution?


Yes?‑‑‑No, that's right, I don't.


I take it then that you've never worked in an ADE either?‑‑‑No.


Now can I ask you to cast your mind back to the earlier part of your career, I just want to see if I understand this.  You weren't personally involved in the development of the SWS were you?‑‑‑No, just very indirectly.  I was in - at the point of time that the supported wage system was brought through the Australian Industrial Relations Commission I was working for Disabled Peoples International Australia and  Disabled Peoples International Australia was just one of the parties that was consulted on that development, and was one of the parties that agreed to it.  So I was a staff member at the time but I didn't have any direct - - -


The junior - beginning of your career?‑‑‑Yes, you could say - well that was 1993, so.


Let's move forward.  BSWAT as I understand it was developed between 2003 and 2005, does that sound right to you?‑‑‑No, it was a little bit earlier than that.


Little bit earlier?‑‑‑Probably the very early beginnings of that would have been around 2001, 2002.


Were you involved in the development of BSWAT?‑‑‑Yes, I was.

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So can you just explain for me - you were on steering committees?‑‑‑Yes.


Working parties.  What were you doing?‑‑‑All right.  The minister formed a business service wage assessment tool working group and I was on that group. So we were monitoring the research and development and the consultation and the development of the BSWAT at that time. So that was my participation.


Were you a dissenting voice at that time or were you a participating voice?‑‑‑Look, it was a very complex process so there were all sorts of different issues to discuss, so some of them I was supportive, some of them I weren't supportive.


So it was a consensual process that you were participating in?‑‑‑Well, up to a point.  The decision making of the BSWAT was taken out of the hands of that steering group towards the end, so I wasn't in a role actually to give consent to the BSWAT at all.


I understand.  So you were involved in its evolution and development but not its ultimate sanctioning?‑‑‑That's right.


I am right, aren't I, that originally the SWS was designed for open employment?‑‑‑Well, not exactly, because at that particular time from the Disability Services Act onwards, the purpose of all the open market developments was to move towards a notion of integration where people with  disability could have access to the industrial relations system the same as everyone else.  So in the end when the final model clause was agreed on at the Industrial Relations Commission, it contained the facility for both open and as we knew them at that time sheltered workshops, who were funded under section 13 of the Disability Services Act to access it, because the thinking at that time was that we were going through a period of change.  Part of that change was to move people with disability to that equal access to the industrial relations system. So the model clause gave access to all employers ultimately.


Ultimately.  Well, you've got a copy in your statement as an attachment, I think it's - I'm not sure which one it is, it's under 7.  It might not be that important, I'll take a different - you attach a copy of the decision of the Australian Industrial Relations Commission from 1994 which included putting the supported wage system into federal awards at that time.  You'd agree with me having read that - because I assume you've read it.  You'd agree with me that at that stage it was presented to the Commission as for open employment?‑‑‑I think that was a huge purpose but I don't think that was the only purpose because - sorry?

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That wasn't my question, Mr Cain?‑‑‑Please say it again.


You'd agree with me that it was presented to the Australian Industrial Relations Commission as being for open employment?‑‑‑No, I don't think so.


So the fact the decision says that - - -?‑‑‑I think that was - I think that was one significant component of it but as I said before, it also contained part of that clause to allow those section 13 services, which we now call today Australian disability enterprises to also access it.  But, you know, on balance, the primary purpose was open employment because of the need to have something to allow the same group of people to have access to the industrial relations system and the open employment, but it didn't discount sheltered workshops from accessing the same model clause. So the purpose was broader even though there was a distinct purpose of moving into the open employment realm.  Because at that stage very few people with an intellectual disability accessed open employment, so what it was doing was opening up the opportunity for this group of people to work in open employment but it didn't deny disability enterprises for accessing the supported wage system.


That's fine, I'll let the decision speak for itself.  Now when did you make a personal decision as an advocate that the supported wage system should be the only tool applying to employees with disabilities?  What year would that have been?‑‑‑I could only give you an approximation.


That's fine?‑‑‑Because this is an issue that's been evolving since 1986 in our thinking over a long period of time.


I'm interested in your - I'm interested in your thinking not our thinking?‑‑‑Yes, I know, that's what I'm saying.  My thinking has evolved over quite a long period of time.  I think I would say around 1996, 97, 98, it became clear to me that the supported wage system was probably the ideal way to have a national tool that applied to all workers with disability.


You've been an advocate for that cause since that time?‑‑‑Yes, I have.


Now I've read some literature about you.  I'm right, aren't I, that you don't believe in segregated employment?‑‑‑I don't think it's a belief per se.  I think what I've always - - -

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You don't support segregated employment?‑‑‑No, I'm happy for people to choose that if that's what they wish to do.  My advocacy has been about the fact of possibility of open employment, that's the main focus of a lot of my advocacy is to present the view that this is a group of people who can and should get the support to do that, so it's not a question of believing that segregation is made.  The new direction of the Disability Service Act was the purpose of presenting that integration is an object, a primary object of the Act and it's something that was possible.  So most of my advocacy is about moving towards that direction. I think the misinterpretation that I'm hearing from you is that that's interpreted as not liking segregation.  But I think my view is that we're moving in that direction and therefore the advocacy was how do we build that and how do we promote that.  I think the misinterpretation is saying that that direction means that you don't like segregation.


So you had not principled objection to segregated employment if that's what people want but you're very keen to encourage open employment?‑‑‑Exactly.


Thank you.  Am I right in saying your personal preference as a disability advocate would be to see people in open employment?‑‑‑Very much so.  It's something that I think is consistent with all the international and national legislations and rights that we have at the moment.  For instance, Article 27 says we should be moving to full inclusion at the UN Convention.  The NDSI Act talks about full inclusion. The Disability Services Act talks about integration, so this is the preferred direction of international law, it's the preferred direction of Australian law and it's - - -


I'm really interested in your view - I'm really interested in your view, sir?‑‑‑And it's - and my view is consistent with that direction.


Is it your desire ultimately as an advocate that there's no discounting of wages for people with disability?  You would like to see them paid full award rates?‑‑‑No.


So you accept as a principle then that there will be some circumstances where rates are discounted?‑‑‑Yes.

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VICE PRESIDENT HATCHER:  I'll just take a step back, Mr Cain.  Do you accept or not accept that for some disabled people who can work that open employment will never be suitable for them?‑‑‑Based on the evidence I would have to say that we will only know that if we first try open employment.  The best practice at the moment tells us that we can only reach that conclusion if we actually implement the best practice for open employment, because the fundamental principle of that evidence is that you don't know until you've actually placed someone in open employment and provided them systematic training. It's only at that point we can actually make some kind of judgement as to whether it's possible or not.  Because I think part of the problem of this particular issue, because it's a very good question, is that it's not just about the capacity of the person with intellectual disability, it's also about the skill of the provider and it's also about the willingness of the employer to customise and include. So there are a number of variables at play here but we'll only find out if we actually do it, and I think this is part of what we call in my circles the employment first thinking.  So there are many people who do go through that process but in the end don't succeed.  They may choose to then go onto a disability enterprise or they may do something else because they don't have an obligation to actually work.  So for us it's not an either/or and I think that's been the problem with a lot of the policy discussion is it's like dividing into two camps.  Whereas in my work we're trying to develop a system where every person with intellectual disability can have access to that good practice so they can have that equal opportunity to try open employment and see if they can succeed.  Because we've got enough examples of success to say that it is possible.


But in the same token there's also examples of persons who have worked in ADEs, have transitioned to open employment, it has not succeeded and they have returned to ADEs?‑‑‑That's correct, but I think what's - there's a nuance there that has to be understood, is that the reason why we developed open employment models of placing and training, which is like the short term, we talked about the evidence model, is that the pathway through an ADE has traditionally over probably three to four decades been unsuccessful because it's not evidence based.  That's generally because people with intellectual disability can't generalise and transfer skills learnt in one place to another place.  Hence why the evidence based process is to play straight into open employment and provide the training on the job.  The statistics tell us in Australia that less than one per cent move out of ADEs into open employment, but that's not an indication of their capacity. That's an indication of the poor practice that we know doesn't work, whereas if we move to best practice we know we can get up to 70 to 80 per cent.  So to me it's almost like saying if you want this group of people to move into open employment, probably the least or the worse process or practice that you would do would be go to ADE first.

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Is that suggesting practices in ADEs are detrimental to the prospects of somebody succeeding in open employment?‑‑‑Yes, it's contrary to the science.  The science says that this is a group who can't generalise and transfer.  That whatever you learn in this setting doesn't transfer over to this setting, so that's why the science found out that we're betting off not seeing it as preparation, because in the 70s and 80s we learnt that going into a sheltered place is effectively terminal, you're staying there.  You don't move through.  To think that it is preparation for open employment is at this - in the year 2018 is fairly nave.  Moving straight to open employment and getting on the job training is what the evidence is telling us is the most successful and it's vastly more successful than going to an ADE.  So it's like less than one per cent versus a possibility of up to 70 to 80 per cent.  It doesn't mean that - there are some open employment practices that are very poor, that can get less results but we know that the possibility is far greater when the best practice in open employment is provided to the same group of people.


Presumably the NDIS is meant to encourage disabled people and their carers to make their own choices about where they want to go?‑‑‑Yes, well this is - I was discussing with the National Disability Insurance Agency yesterday, we held a forum on national open employment practices and they're grappling with this issue.  How can they raise the expectation of families and people with intellectual disability to try open employment because they have such low expectations generally, and what could the NDIS do to expand and replicate good practice so that it's available for everyone?  Part of the problem at the moment is best practice is very sparse and it depends on really location and where you live, rather than it being a default practice available to everyone.  So it's a - you know, I think some of the questioning is talking about this history from 1986 to 2018.  We're still in a progress of developing this practice and these ideas.  We've come a certain way.  We've still got a long way to go.


Finally, are there any other countries which have progressed further along the goal that you perceive is desirable? I think I saw in another statement that the UK, for example, had taken further steps to move away from segregated employment to open employment?‑‑‑Well, it varies.  I was speaking to a representative from Germany yesterday and they have an extraordinary amount of people with intellectual disability still in institutions and sheltered workshops.  I think he was saying that less than one per cent of the population is in open employment.  We're at about 11 per cent and we thought that that was not very good, so relative to Germany we're doing rather well.  But like the United States reports 14, 15 per cent and so this is an international endeavour to see how we can change, and the change isn't easy because we're coming after many, many years of low expectations and myths and misconceptions and also trying to get a disability service sector to change to new practices, and these things are very - have proven very difficult.  We thought at the timed of the Disability Services Act that it would be short term but clearly it's going to take a lot longer than we thought.  But the NDIS does actually provide some momentum for us to look at how to build it further.


Thank you.


DEPUTY PRESIDENT BOOTH:  Mr Cain, could I just ask something that was stimulated by the Vice President's questioning.  If an open employment first policy was both in place and implemented, would it still be important to have an Australian disability enterprise sector as a safety net, in order that those who try open employment and find it wanting aren't sent home?‑‑‑Yes, I think it would be, and if I can just tease this out a little bit.  I think the short answer is yes, but I think what I'm hearing, from talking to a lot of people yesterday, at this forum, that they want to expand the options to things broader than that so that they can consider, perhaps, self-employment, social enterprises, a range of things.  In that mix could include ad probably should include the disability enterprises.  So, yes, in short, yes.

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MR WARD:  In terms of open employment, part of the issue, obviously, is the availability of roles in open employment?  Supply and demand becomes an issue, if there aren't any roles then we're not going to get open employment, are we?‑‑‑That's true.  It's a challenge and, again, that's part of the practice that we're looking at, at the moment, about what does create those roles and what doesn't.  So we heard yesterday, if I may continue, the practice of job customisation in open employment where most people with an intellectual disability in open employment don't get the jobs through advertised vacancies.  The best practice is showing that they have to be created, customised and that involves the direct engagement with business to look at how to do that, rather than through the traditional job market recruitment practices and the like.


Mr McFarlane yesterday, who is an SWS assessor, I don't know if you know him?‑‑‑I do know Rob.


He effectively identified two reasons, just let me put them to you, he said that people create positions in open employment through reasons of social responsibility, corporate social responsibility and, other than that, it's because people from the Department are prodding them to do it, to convince them to do it.  That seems to be the primary motivation?‑‑‑It's a little bit more complex than that.  The practice that is being very successful at the moment is approaching it from a business point of view first, rather than a social point of view.  The practices that are getting the best results is based on the idea of putting propositions to business about meeting their needs, rather than meeting the needs of a social purpose first.  What I am seeing is that social purpose comes second.  So you see, here's this person that can contribute and add value to the business and they can see the benefits of that, because that's what gets through the door.  But as most of the employers I spoke to yesterday they talk about the enormous impact it has on the other staff and also on their business partners, so that's the social benefits that come.


These are tangible benefits, in terms of morale and things like that?‑‑‑Yes.  So the sustainable employment, though, has to be, first of all, proven or shown on a business level first.  If it's done on a social/charitable basis, we find that the job losses happen more frequently because it's not sustainable.


You're not saying that employing people with disabilities in open employment saves employers money because they can reduce the hours, or make redundancies of people who don't have disabilities?‑‑‑Could you just repeat that question, again, please?

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Let me give you an example, to be fair to you.  Let's say that I run a shop and I've got three shop assistants, they're full-time shop assistants, and I decide to bring somebody in who has a disability to tidy the shelves.  Whatever the cost of that person coming in to tidy the shelves is an extra cost unless I am reducing the labour costs of my existing employees?‑‑‑Most of the positions that I see in open employment are based on putting a proposition of a benefit, where routine and basic tasks aren't performed, or not done because multiskilling gone too far, or they've got highly competent people who just don't have time to do it, and I think, at the end of the day, that's why the business proposition is the most successful.  If the proposition is that, say, for instance, I'll just make up a virtual person, John can do the filing, and the scanning, can do tidying around the office and all that and free up staff who are doing higher order skills that generates a higher value of contracts and business and income, then the proprietor then sees this as a wonderful opportunity to grow the business.


You haven't done any studies, though, that show - - -?‑‑‑Yes.  I haven't done studies myself, but there are numerous studies on this now.


That's what I'm asking you, you haven't done any studies that show that that would improve sales, for instance, or profitability?‑‑‑Well, I haven't done any studies, but there are a number of studies in the journals now showing that profitability through that job customisation strategy of employment.  So that taking on a person to do these routine basic tasks in enterprises can actually increase the revenue and profitability of open employment regular businesses.


You haven't done any studies, have you?‑‑‑Myself, no.  No.  That's why I was saying, right at the very beginning, my job is not to do the studies - - -


You're just an advocate?‑‑‑No, my job is to understand the science and the research so that we can promote best practice.


None of those studies are attached to your affidavit, are they?‑‑‑No, they're not.


VICE PRESIDENT HATCHER:  Mr Cain would you be in a position, through Mr Harding, to identify or provide copies of some of those studies?‑‑‑Absolutely.


MR WARD:  If that's the case I might want to recall the witness.


VICE PRESIDENT HATCHER:  Well, they're not his studies.


MR WARD:  He says he can talk to them.

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MR WARD:  Yes.  You gave evidence in Nojin?‑‑‑Yes, I did.


Do you remember that experience?‑‑‑Parts.


Parts, okay.  I just, having read some of the transcript, I just want to see if I can understand some key things.  If I get this wrong, tell me.  I think one of your criticisms of BSWAT was that it required an assessment, relating to four abstract industry competencies, that were not actually relevant to the performance of work.  Is that a reasonable way of describing it?‑‑‑It's a little bit more complex than that.


I knew you were going to say that?‑‑‑What I need to clarify from you, are you talking about the industry based competencies or are you talking about the general competencies?  Which ones are you talking about.


So there's two sets of competencies, one were industry based and one were generic, how many industry based competencies were there?‑‑‑There was four.


How many generics?‑‑‑Four.


So it's a four and four?‑‑‑Mm.


It's my understanding that, in the Nojin trial where you appeared, you gave evidence that said those competencies, both the industry and the generic, didn't actually relate to the performance of the work, is that right?‑‑‑Yes.


Am I further right in saying that you gave evidence in that case to say that commonly, employees with intellectual disabilities were simply incapable of performing some of those competencies?‑‑‑Yes.


I think you also gave some criticism that the actual methodology of assessment, which I think was a written test, I think I'm right, meant that it was disproportionately harder for people with intellectual disabilities to other people?‑‑‑It was an interview, not a written test.


Yes, as opposed to an observed application of the competency?‑‑‑It was an interview, yes.

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Interview, okay.  So am I right in saying that you don't have a principled or ideological objection to assessing competency, per se?‑‑‑No, I don't.


As long as that competency is relevant to the work being performed?‑‑‑Yes, that's right.


And as long as the method of actually assessing whether or not the person holds the competency is fair to that person?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Mr Cain, does the SWS took, in any way, take into account the complexity of an actual task being performed, as distinct from the rate at which it's being performed?‑‑‑Yes, it does.  Can I give a long answer?


Yes?‑‑‑So the primary premise behind that particular assessment begins with the notion that an employer - it would be fair enough for an employer to say that the employee with the disability may be able to perform the particular task, but not at the rate that they expect a person without disability would have done it, so that's the primary premise.  That's a fair enough premise that I support.  The issue of complexity comes in terms of the comparative nature of the assessment.  So whether it's simple or complex or somewhere in between, the way the supported wage system handles that is through its performance standard benchmarking.  So whether it's simple or complex is, in some ways, irrelevant, because you're setting the standard the employer requires or expects or agrees to, in terms of what that performance value should be for that rate of pay.  For the employee it's a demonstration of the proportion of that standard that they're able to achieve.


Now, it's obvious to me that if it's a simple task, and the person is well trained, they've probably got a higher opportunity to get a relatively higher percentage and hence why most people with intellectual disability are doing routine, basic tasks, because that plays to their strengths.  I suppose, as you turn up the complexity and you're applying against that performance standard, the chances of them performing higher become decreased, as the complexity of that task and jobs goes up.  But, at the same time, you're always measuring the value against that performance standard.  So, in essence, it's really much built into the Supported Wage System because it's against that performance standard all the time and that performance standard is set against that value that's already been determined under the award classification.

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VICE PRESIDENT HATCHER:  Can I give you an example, which I raised with Mr McFarlane yesterday, and I just want to see if you give the same answer.  The Full Bench conducted some inspections on Tuesday/Wednesday and at one location we saw an employee who was given a simple task of - had a bucket of knives, forks and spoons and had to divide them up into separate buckets, depending on which utensil it was, and we were told that that was really the only duty that they could find for him to perform, in the enterprise.  To my quick observation probably could do it as quickly as I could.  Then we went to another enterprise which involved disabled employees doing more advanced tasks, involved cutting and sewing material and operating a sewing machine.


If, in the first case, a person was doing it at, say, 90 per cent or even 100 per cent of what the benchmark would be in the very simple task but in the second case, the more complex task, they're achieving 50 or 60 per cent of the benchmark, but it's much higher valued work, how does SWS deal with that?  Does it mean the first person gets paid more than the second person?‑‑‑Not necessarily so, because there's a number of variables going on here.  Because even though it might be simple we may see a variety of performance against that standard.  We saw that in the demonstration during the conference.  I'm familiar with the place that you're talking about and that particular setting was part of the final demonstration.  When we looked at that, and take that second task of the sewing and cutting, I think of the 10 employees that were part of that demonstration, of those three were doing the sewing, two had outcomes, productivity outcomes, around the 40 per cent mark against that performance standard.  One had only 10 per cent.  As I was saying before, in some ways that means, under the Supported Wage System, that here's a person at 10 per cent, that means the performance standard and employee without disability would be able to achieve 10 times.  On that basis that's reasonable to the employer, because it's against that standard.  But then if you take those other simple tasks, in that particular demonstration I think there were seven doing a simple packing - - -


This wasn't packing, it wasn't even that standard, it was simply - - -?‑‑‑Right.


It was taking knives and forks and putting them in different - - -?‑‑‑I'll come back to that.  But in the packing one that I saw, you could argue that it was more simpler than the sewing task, the range of performance was like 3 per cent to 68 per cent.  So that means that making a judgment call on simple and complexity of the task really only has any meaning once you do the assessment, because of the range of the people that are doing it will be always broad, because it's not the task that gives us a sense of whether it's complex or not, it's the capacity of the person doing it, and there's probably other elements that play in that, in terms of training as well, the quality of the training and the like.

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But the question would be that whether it's three or 68 or 10 or 48, it's always against that performance standard which gives us a safety control there.  So take the one that you mentioned, with the simple sorting, if that person can do that simple sorting as fast as yourself or myself, then under that sort of structure then that's reasonable and fair, because that's the basis.  If we're going to pay a person without disability a full award wage for doing those tasks then that person, who's then demonstrated they can do those tasks at that same rate, then they legitimately deserve to get that wage.


VICE PRESIDENT HATCHER:  Let's raise this point, speaking for myself, the difficulty we have with that is that in the second case, the sewing job, and I for using the wrong terminology, but that a real job, in the sense that there was a non-disabled person also doing the work, which we saw, and it was work which you could actually - it's a job that actually would exist in a labour market and you could give it to a non-disabled person.  In the first case it wasn't, with respect, a real job, it was something which they found for that person to do and you would never, in reality, give it to a non-disabled person.  How do you take that into account, if at all?‑‑‑Well, some of the evidence that was collected by the Department of Social Services, in the Nojin case, looking at this notion of would this be a job that you would have a person without disability do?  All the comparative research of looking at the similar types of jobs in ADEs versus in open employment, was shown that we had the same range of competency and the same range of tasks, even if the task was simple in open employment, they were still getting at least the minimum wage.


The question is, if the job is so constructed just to keep someone busy - it's interesting you use the word "real" then we have to question whether that's legitimate employment or whether we've actually done a very good match or a very good training.  Because that was one of the things that came out of the development of the Supported Wage System, if someone is performing at such a low rate then we have to question whether we've actually put the person in a position that is real and is well matched to their strengths and able to contribute.  So it does, it teases out those issues that - I think this is the notion of moving to real employment that the Disability Services Act wanted us to do.  It wanted us to move away just from keeping people busy and look at commercial operations and real jobs and real wages.  But we've still probably got some traditional stuff, busy work, still going on to keep people occupied.




MR WARD:  Thank you, your Honour.  I just want to ask you some questions, if I can, about valuing work and can we just avoid having a debate with each other about how, for a minute, if we could.  You'd agree with me that the focus of determining a wage should be the value of the work actually performed by the employee?‑‑‑I'm sorry, could you please repeat that?


That's all right.  You'd agree with me, wouldn't you, that the focus of determining a wage should be the value of the work actually performed by the employee?‑‑‑Yes.

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Now, you use a phrase in your statement, which is "apples versus apples", I just want to put a scenario to you and just see where we disagree.  Have you shopped at a Coles shop before?‑‑‑Yes.


Coles will be pleased to know that?‑‑‑My family work for Coles.


I hope there's not a conflict in the question then.  Could you imagine a Coles shop, this Coles shop has Bob, the retain worker, and Bob is without a disability and performs a variety of lots of different tasks in the shop.  Coles decide to engage somebody with an intellectual disability and they decide to construct a role for that person, doing no more than tidying shelves, realigning stock that the customers might have knocked?‑‑‑They call it facing.


I was informed of this yesterday, facing up, yes.  We ask Bob a question and that question is, "Bob, how much of your job is facing up?"  Bob says, "Well, that's just 5 per cent of my job, 95 per cent of my job's involved in all sorts of other things."  Now, you'd agree with me, wouldn't you, that right at that point, just at that point, if I'm comparing the job Bob does, the full job, with the job the person who's just facing up is doing, you'd agree with me that that is not an apples with apples comparison?‑‑‑No, I wouldn't agree.


Do you think those jobs are exactly the same?‑‑‑Because you're leaving out an important element here, because even though it may be just that one particular task, they're doing that task the whole of their work time, right, whereas someone else might be doing facing up for a little bit of their work time, they might be doing some other task for their work time, and all that, so the apples with apples is task versus task, otherwise it would be completely unfair to determine that person's value, if you were comparing them against tasks they don't do.


Just - - -?‑‑‑Can I just finally say, is that this was part of the problem with the BSWAT is that we were assessing things that weren't part of people's jobs.  This is the major problem that we see, otherwise you're not doing an assessment of the person's job performance, you're doing an assessment of someone else's job performance and that creates problems.


You might remember that when I started this I said can we just put tools and things to one side for a minute, I know you're desperate to get there, I understand that?‑‑‑I will try, but I need to give - - -

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I know you're very passionate about what you believe in, I understand that.  I write out a job description for Bob and it's got all of these things in it, and I wrote out a job description for the person with a disability and it's got one line in it and you're saying, as far as you see that, they're the same?‑‑‑Well, they're the same, in terms of job task, right.


You said - - -?‑‑‑However it's different - - -


VICE PRESIDENT HATCHER:  Let him finish, Mr Ward.


THE WITNESS:  It's the same - I forget the names you used, but let's say, John, he's doing facing up at Coles, this happens and Coles is a big employer of people with intellectual disability in Australia and facing up is a common task.  If they're doing that task, for the time that they're doing that task, that's comparable to the time that someone else is doing that task, albeit whether someone is doing additional tasks or not.


MR WARD:  I'll try one more time, I don't think you've answered the question.


VICE PRESIDENT HATCHER:  He doesn't agree with you, Mr Ward.


MR WARD:  Okay.


VICE PRESIDENT HATCHER:  Can I raise this, Mr Cain, that that's obviously the SWS methodology, but that is at odds with the way this Commission, and its predecessors, has assigned a value to work for the last 50 years.  That is, we look at the nature of the work, the level of skill and responsibility involved and the conditions under which the work is done, they're the principles in the Fair Work Act and they represent 50 years of case law.  How, in that context, does the SWS match up with the way in which the Fair Work Commission actually sets rates of pay and awards, given that the SWS is meant to give you a rate of pay that relates to the rate of pay set by awards?‑‑‑Well, the way the SWS works is to take that - already that classification that's worked out the skill levels and the supervision levels and quality checking levels and all that, that's already in the classifications, and that's where, if the facing up is part of that classification level, then it immediately meets those decisions that have already been made over those 50 years.  Because person is working and that time that they're working, whether it be eight hours or 30 hours, for that time they're doing that task and that employer has agreed that that's valuable to their business.

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So just there, if someone else is doing, say, four tasks in the hour, that's no more less entitled to or more entitled to the award classification rate of pay than someone that's doing one task.  I think that's the research, again, that I've got to point to, from the Marshall Consulting the Department of Social Services funded, is that there are people without disabilities doing job tasks, under the current regime of industrial relations in Australia, who are doing as little as one tasks, or two tasks, getting paid the award rate for doing those tasks.  So the question is, if we're going to differentiate for a person with disability doing one task then are we going to differentiate for those people without disabilities doing one task?  That opens up a can of worms, as far as I'm concerned.


DEPUTY PRESIDENT BOOTH:  Mr Cain, the apples and the apples and the apples and the oranges are this, aren't they, that in some cases a person with a disability, in an ADE, is supervised in a manner that is never replicated in open employment, on an ongoing basis?  That is to say that either an operational supervisor providing verbal prompts and role modelling periodically and routinely the task, or the kind of behavioural supervision that involves people going off task in order to be counselled and supported to exhibit the appropriate behaviours ongoingly.  That's not something that happens in open employment and it's not something that the classification structures of modern awards have ever contemplated.  Do you agree with that, or not?‑‑‑I think generally, yes, and I think this is why the Commonwealth funds the support and supervision, in recognition of that difference.  That's the notion of disability support assistance, it's the additional assistance above and beyond what would typically be expected, that's the same in the open employment assistance as well.


So if I just give one little example, so we know that training a person with intellectual disability in open employment is considerably more intense and longer than what an employer would be normally expected to do, hence that's why the Commonwealth fund that, so that there's no burden on the employer.  That way no burden on the employer and it provides the opportunity for the person with intellectual disability.  I think that the same principle applies with the ADEs, that's what the funding is for, to recognise that ongoing, intensive assistance.


VICE PRESIDENT HATCHER:  That deals with issues in respect of the cost to the employer, I think the question's been raised in terms of what relevance it has to assessing the value of the work.  Whether the government funds or doesn't fund the supervision may be one thing, but it's a question of whether that's a matter that you need to take into account when assigning a value to the work performed by the disabled employee for wage purposes?‑‑‑Yes.  The only thing I'd add is that in these lower grade levels direct supervision is part of the classification, is it not?  That's the same in open employment for those levels as well.  So to me it's that plus the additional funded assistance that's provided, that has to be part of the thinking and calculation here.


Thank you.

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MR WARD:  Can I explore an issue involving the SWS with you, that is this.  As I understand it, and I'm going to talk some more about this in a moment, but let's take the Coles example.  Again, for whatever reason, Coles have agreed to manufacture this role and Coles and the SWS assess and negotiate a benchmark for assessing against, that's my understanding, then the person with a disability is assessed against that benchmark.  Let's just keep the example very, very simple again, if I, as the person with a disability, achieve the benchmark at 100 per cent I get the full award wage?‑‑‑Yes.


If I achieve it at 80 per cent I get 80 per cent of the award wage?‑‑‑Yes.


Why wouldn't it be fair, if I achieved 120 per cent that I got 120 per cent, why wouldn't that be fair?‑‑‑Because, again, if you're comparing apples with apples, if an employee without disability performs above a standard they don't get more than the rate, the employer is not obliged to pay more than the rate.  I think this is part of the issue of setting the benchmark is that it's, in the end, a very simple mechanism where we're not looking at intensive studies of productivity for that level.


Usually we've got a small amount of time to come up with an agreed standard and even in open employment there will be a range.  So I know in Coles, for instance, they have standards for checkout, pace of products going through scanning, and the like, and I know there that they'll have a range and they may come up with a standard or average.  Some people argue that if the lowest of that productivity is getting full award rate then that should be the standard.  Some people argue that it should be an average.  But, at the end of the day, I think it's meant to be an agreed benchmark where the employer is satisfied that that's the expectation.  Usually the Supported Wage System assessor will do some validation and checking, to make sure that it's reasonable.  That then provides, as best we can, with the time and resources, to actually come up with something that all parties are comfortable with to then determine what that percentage is.  But if it's above, then it just confirms it's not necessary to pay a pro-rata award wage, they should just simply get the award wage.


MR WARD:  So it's not that we should be rewarding your output?‑‑‑Well, we don't do that, no.


We should only reward your output when it's up to the award wage?‑‑‑Well, we don't reward for above, in our system, do we?

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In your statement you seem to indicate a fairly strong knowledge of the Supported Employment Service Award, am I right in saying that?‑‑‑I wouldn't say "strong", I'd be a little bit more circumspect and say that I've got a reasonable understanding of the award.


We'll go with "reasonable".  Bear with me, because I've lost my copies of it.  Can I, just to be fair to you, can I provide you with a copy of it?  I don't have one for the Bench, I'm sorry, I assumed everybody might have it.  Mr Cain, this isn't a circus trick, what I'm about to do, I don't want it to appear that way.  Can I ask you to turn to page 35, which has the classifications?‑‑‑Yes.


You'd agree with me, and if you have to go through the classifications to refresh your memory, you would agree with me that this award sets no output standards for any activity for any grade?‑‑‑That's correct.


This award, in fact, doesn't mention productivity at all in the classification structure?‑‑‑That's correct.


So these output standards that you talk about are negotiated workplace by workplace, assessment by assessment?‑‑‑Yes.


You'd agree with me, therefore, that it's quite possible that workplace A, workplace B, looking at very similar work, they could actually have different standards, even though they're looking at similar work?‑‑‑It's possible, from a positive and negative point of view.  From a positive point of view is that some places, even though they're doing the task, the process might be designed differently, so you don't want to have exactly the same standard.  But in the negative, it sometimes can cause problems, in terms of variation.


So I think you agree with me that the standards are not in the award, the performance standards?‑‑‑Correct.


They're negotiated workplace by workplace?‑‑‑Correct.


Assessment by assessment?‑‑‑Correct.


And it might very well be the case, for whatever reason, that those standards for similar work, in different workplaces, could differ?‑‑‑That's correct.


Yes.  Can I take you to your first statement?  Could you go to paragraph 28, have you got that?‑‑‑Yes.

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At paragraph 28 you talk about, I think the phrase you use is that the SWS allows for a period of training?‑‑‑Yes.


You're not contending, are you, that the only time people get trained is because the SWS is being used?‑‑‑No, I'm not.


No, okay.  Now, do you recall, in your first statement, you tell us that one of the strengths of the SWS is that it has an independent assessor?‑‑‑Correct.


Do you have much familiarity with modern awards of this Commission generally?‑‑‑I wouldn't say strong, I've got a little bit.


Let's see where we go.  I'm not sure how many there are, as of today, but it's around about 122, just trust me with that?‑‑‑Okay.


Those awards usually set out a classification structure, very similar to the Supported Employment Services Award, and do you understand that it's the employer's obligation to classify people into those structures?‑‑‑Right.


That seems to be an acceptable approach for all those 120-odd awards, but you have a view that that's an inappropriate approach for people with disabilities.  You think it's better to have an independent assessor?‑‑‑Are you referring to something I've said in a statement on that issue, or are you asking me anew now?


Well, you say that one of the benefits - - -?‑‑‑Because where do I say this?


You say that one of the benefits of the Supported Wage System is there are independent assessors?‑‑‑Yes.


Do you agree with that?‑‑‑Yes.


So do you hold?‑‑‑Yes.


What I wanted to understand is this, there are not independent assessors for all the other awards of the Fair Work Commission, we don't have independent assessors there, the employer classifies their employee?‑‑‑Yes.

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MR HARDING:  I object to the question.  If it's being put that there's no independent assessors in respect of non-disabled workers, that might be correct, but the SES forms part of all other modern awards.  I'm concerned about the witness being misled by the broad nature of the question.


VICE PRESIDENT HATCHER:  So it's for all modern awards, other than the SES Award?


MR WARD:  Yes, your Honour, other than using the SWS tool that's in the back of modern awards.  Let me give you an example, there's an award that covers clerical work and let's just deal with somebody who's covered by that award who does not have a disability.  That person would be asked to perform a variety of tasks, have a variety of competencies.  The employer would turn to the back of the award, look at the classification structure and go, "Um, you're a grade 3, this is how I pay you"?‑‑‑Right.


But that doesn't attract you, as a concept, when we're dealing with classifying people with disabilities.  You think it's better to have an assessor?‑‑‑Quite the contrary.  Quite the contrary.  I don't think the Supported Wage System is contrary to that notion of the classification.  In my discussions and time of thinking about it, the supported wage assessor is still reliant on the employer having done that, as a standard employer obligation or practice.  So the Supported Wage System assessor isn't responsible for classifying or determining the classification, they're only responsible for finding it out, as part of their assessment process.


You seem to be advocating, though, that people with disabilities need the added protection of an independent assessor?‑‑‑Yes.  Yes, that's a different thing to the classification process of the assessment.  The independent assessment is not associated with the classification responsibility of the employer.


If you view - - -?‑‑‑So we're not understanding what you're saying here.


So your view about the independent assessor being preferable for people with disabilities because you believe they're a more vulnerable group of people?‑‑‑Yes, absolutely.  That's the basis of why I have that view, because of their vulnerability.  We're talking about a group of people with intellectual disability that are prone to acquiesce, prone to suggestibility, struggle to speak up for themselves.  So we think the independent assessment is a critical piece of protecting and safeguarding a group of people who are, indeed, vulnerable because of their impairment.

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Would you agree with me that there actually are a lot of people looking after the interests of people with disabilities, in ADEs?‑‑‑Absolutely.  But I think, at the same time, I need to add that there is conflicts of interests or competing interests as well.


Let me just go through them.  You'd agree with me that ADEs are mission based organisations?‑‑‑What mission would that be that you're referring to, so I know exactly what you're meaning?


Could I put it to you that ADEs are mission based in this sense, they're very purpose for existence is to create employment opportunities for people with a disability?‑‑‑Yes.


Would you agree with me that most people with a disability have a guardian or carer who looks after their interests or assists in their interests?‑‑‑Yes.


Would you agree with me that people with a disability can be and are members of trade unions?‑‑‑Yes.


Would you agree with me that people with a disability have advocacy groups looking after their interests?‑‑‑Yes.


Would you agree with me, like everybody else in this country, people with disabilities have the Fair Work Ombudsman looking after their interests?‑‑‑Yes.


So they have a lot of people looking after their interests?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Mr Cain, presumably whatever methodology the SES Award use for ascertainment of the pay rate, you could have independent assessment, as long as the Commonwealth was prepared to fund that?‑‑‑Absolutely.  I think that's the - sorry, what are you asking me?


Well, the issue of independent assessment is not intrinsically linked to the SWS model, it could be linked to any model?‑‑‑Absolutely, yes.  Yes, it could be.  As it was with the BSWAT, it was linked to the BSWAT.


It's simply the fact now that the only government funded independent assessment facility provided is for SWS?‑‑‑Correct.

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Thank you.


THE WITNESS:  Can I just quickly add, it's one piece of the puzzle.  So it's not just that alone, it's that plus that and this and that, so that's one piece.  But you're essentially right, it could be a feature of something else, yes.


MR WARD:  Can I come back to this notion of valuing work?  You'd agree with me, wouldn't you, that the financial viability of an employer is not relevant to valuing the actual work being performed by an employee?‑‑‑Can you say that again, please?


Yes.  Would you agree with me that the financial viability of an employer is not relevant to valuing the work actually performed by an employee?‑‑‑If I understand your question, I suppose because we set classifications and rates of pay and you can't adjust them, based on financial viability, I suppose they are distinct issues.


They're distinct?‑‑‑They're sort of set, I suppose, and business has to create itself around those set classifications and pay rates, they have to conduct business on that construct.


On that basis?‑‑‑Yes.


If they survive they survive, if they don't they don't?‑‑‑Yes.


Would you also agree with me that government funding, whether to the employer or the employee, will not actually change the value of the work being performed by the employee?‑‑‑That's a difficult one to answer because sometimes these two things cross over.  For instance, if government funding is used to assist business then it does, and that happens with the Australian Disability Enterprises, or if the funding is used for supervision, because that's an obligation under the award for these classifications, it would cross over.  So, yes, I'd say they're not entirely distinct.


Let me ask you a different way.  Let's take somebody who's working in an ADE sewing badges onto shirts.  Whether or not that person is on a pension doesn't change the physical work process that that person is undertaking, does it?‑‑‑Correct.


In that sense, if I'm simply focusing on the work the person is performing and trying to value that work, funding to that person means nothing?‑‑‑Correct.

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His Honour the Vice President has gone to this and I won't labour it, but you do understand that one of the important roles of this Commission and its predecessors is the valuing of work?‑‑‑Yes.


Without wishing to paraphrase his Honour, the practice that's been undertaken for decades is to examine the work performed, examine the environment the work is performed in, the skills that are applied, the level of training required, the level of qualifications required, and a number of things but they're along those lines; are you aware of that?‑‑‑Yes, I am.


You are aware of it.  Is there any reason why that approach shouldn't be applied to people with disabilities?‑‑‑No, there is no reason and, in fact, I think that essentially that's what happens with modern awards with the Supported Wage System.  It simply is coherent with those principles.


So if this Commission was to examine those factors as they relate to work undertaken in ADEs and form a view as to what the value of that work is, you would support that?‑‑‑Well, it would depend really.


What, if you like the answer or not?‑‑‑I wouldn't be a barrier in terms of that investigation, but I think at the moment, based on the current circumstance today, that's already set.


You currently favour people with a disability being discriminated against compared to every other worker without a disability and having their wages set using some other approach?‑‑‑No, no, what I'm saying is that that process of determining that work value through our current structure is in place, it's in place in the Supported Employment Services Award now, so I would support that structure and what the Supported Wage System does is then add a mechanism to work in coherence with that structure.  So, I am supportive of that structure together with a mechanism to allow that to be applied to people who need a pro rate award wage assessment, but I'm not too sure what you're asking.


If you are not too sure then that's fine, but can I just clarify this just to make sure that we're not at odds.  SWS is dependent on establishing a performance benchmark?‑‑‑Yes.


You have agreed with that, haven't you?‑‑‑Yes, yes.

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I am right in saying you have also agreed with me that those performance benchmarks are nowhere to be seen in the award?‑‑‑That's correct.


Yes?‑‑‑However, if I can add - - -


I doubt I would stop you, sir?‑‑‑That performance standard uses the structure of the classification and the rates of pay.  The whole structure and the interface between that assessment is dependent on that structure being there because we're asking for the employer and the assessor and the employee to come to an agreement on what's considered to be the 100 per cent rate of pay for that classification.  So it's very much entwined, it's very much interrelated.


It's a very process?‑‑‑So the fact that it's not there in black and white in terms of how much is, in some ways, disingenuous to the way the system actually works because it's very much connected to the current structure that's been developed over so many years.  It relies on the classification and the rates of pay that have been set already.


I know you are an ardent advocate for SWS, you've told us you've been advocating and campaigning for that for a very long time, but wouldn't this be preferable that you go to the award, like you do for all employees without a disability, you go, "This employee's doing those things and they get that rate of pay and it's written in the award", wouldn't that be preferable?‑‑‑No, because that would cause major problems in terms of the direction of including the integration of people with disabilities in the workforce because the reason why we have the Supported Wage System structure in the modern awards is to actually provide that opportunity for people who could be rejected because an employer might say, "Look, yes, you might be doing that classification work and I'm required to pay you this rate of pay, but sorry, I'm not going to accept you, I'm going to hire someone else", whereas what we've got now is the opportunity for employers and employees to actually negotiate something that's acceptable to both to recognise that lower productivity rate.  So, to me, if you did it on a formal equality basis rather than a substantive equality basis, saying, "Okay, I'm doing that task and I get that rate of pay", I think we would do much damage to people particularly with intellectual disability.


You are talking there about open employment?‑‑‑No, I'm talking to both, any sort of employment.

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Do you think it better that all of this is haggled out?‑‑‑I think it's better that we come to recognise that we don't need to differentiate in terms of the classifications and the rates of pay because they are already set for everyone.  That's not a matter of - I don't think we set classification and rates of pay in this country just for people without disabilities.  That's my understanding.  So, therefore, wouldn't it be better to recognise that that's available for everyone and then have a singular system to determine the question of productivity if the employer is concerned about including that person in their enterprise?


I think that's an interesting submission and I won't cavil with you today because we'll be here all day and never the twain shall meet.  I will deal with that in our closing submissions, Mr Cain.


VICE PRESIDENT HATCHER:  Mr Cain, can I just tease that out?  As you say, our modern awards set classification, and you're probably aware that a number of modern awards have junior rates of pay and they set a specified criteria, based on age, you get X per cent of the adult rate of pay.  Perhaps this is a variant upon what Mr Ward is putting to you, but one possibility might be that there be some analogous construct for a disabled person, that is, you have the classification for the full rate of pay and then you set various percentage levels, say 10, 20, 30, et cetera, up to 90/100 based upon specified criteria which the employer can provide in a transparent way based upon what the award says without the need for any assessment tool?  What do you think about that sort of model?‑‑‑I think it's quite dangerous because you're starting from the premise of discounting on the basis of disability itself and I think that's sort of a downward slope that I think would be very frightening.  I think the fact that we've got a system that recognises that your disability isn't a first point of call for something different is the best way to go because then it requires some kind of burden of proof for an employer to determine does that disability impact on the abilities of that person to do that particular task.


If we were to begin with something less, then I think we run into the issues of profound arguments around discrimination based on individual difference.  Clearly we have accepted the individual difference of junior rates, that if you're a junior and you have a disability, you still are entitled to that junior rate, but if we were to go to disability, I think we would be arguably breaking concepts under the Disability Discrimination Act and perhaps even going against the United Nations Conventions that we've already ratified and signed up to as a nation.


VICE PRESIDENT HATCHER:  How would we be doing that?‑‑‑Well, the Articles on Employment in the United Nations Convention is very clear on the basis of inclusion and equality and not making decisions based on your individual difference being disability.

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If the criteria were not describing the disability but describing the work performed, does that raise the same problem?‑‑‑I think it does because we'd have to ask "Is there anything particularly different in the work performed?"  That's where I come back to most of the research, through particularly the Nojin case and that, is there really isn't anything substantively different in terms of the work performed.  For instance, yesterday I spoke to a young woman with Downs Syndrome who is doing packing for an organisation that provides biscuits to Woolworths and I can invariably see somebody doing the same kind of task in a disability enterprise, but we can determine her wage using that classification of what that business uses and determine a productivity rate.  I don't see where the tasks would be very different.  They are simple and they are routine, but I don't think the tasks are necessarily different per se.


Thank you.


MR WARD:  Can I just have a moment, your Honour?




MR WARD:  Mr Cain, we received some additional attachments to your statements last night.  My colleague on my left is Mr Zevari.  He has just got a small number of questions about those statements.  He is going to ask those of you and then, your Honour, we will have finished with the witness.

CROSS-EXAMINATION BY MR ZEVARI������������������������������������ [11.26 AM]


MR ZEVARI:  Mr Cain, just before I come to the document in Attachment K to your second statement, which is exhibit 16, I just wanted to ask you, you said earlier this morning - and please correct me if my recollection is incorrect - that government funding - it was, from memory, in response to a question from his Honour, the presiding member - that the purpose of government funding is to address support costs for ADEs associated with employees with a disability.  Is that a fair summary?‑‑‑That's a fair summary.


Do you know the current rate of hourly support in open employment?‑‑‑Not off the top of my head, no.


Presumably you also don't know the rate in supported employment as opposed to open?‑‑‑Can you just take me back a little bit because I think I haven't followed you properly, sorry.


Yes, sure.  The current rate of hourly support available from the government pertaining, firstly, to open employment.  That was my first question?‑‑‑Right, okay, I'm sorry, I wasn't following.  There isn't an hourly rate for open employment support, it's funded in a way there are quarterly service fees, and that can vary, they have different bands - at the moment there's two, we're just about to go to five on July 1 - and there's also outcome payments for achieving milestones.

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Right?‑‑‑So 13-week milestones in employment, 26, 52.  So, it's not an hourly, it's not an hourly billed rate, it's based on the delivery of services and delivery of outcomes.


Are there caps associated with those payments?‑‑‑Yes, they are set payments.


Do you know what they are?‑‑‑There's quite a lot of them, so I can't - off the top of my head, I can't.


Is that the case in both open and supported employment?‑‑‑Yes.


But you can't recall the figures for either of those?‑‑‑No, I'd have to have the sheet in front of me to look at it.


Last question on this point.  Again, off the top of your head, is there an average number of hours of support available to workers with a disability in open employment that you're aware of?‑‑‑No, there isn't.


Right?‑‑‑Just on that, it may be of interest that around 2003/4, I believe - I may have the year wrong - the Commonwealth did a study of support hours, the number of support hours to help people with disabilities to achieve a 26-week job retention, and so that's a bit of information that is available if you're interested in that.  I don't have that with me.


Sure?‑‑‑But ever since then, the Commonwealth has actually stopped collecting that information, so we don't have that.  There are some particular providers who collect it internally themselves to use as a basis of informing the Commonwealth and other people about how much in terms of support hours it takes to achieve employment outcomes.  I'm surprised you're interested in it, but that's the area.


Thank you, Mr Cain.  I will take you now to Attachment K that Mr Ward was referring to earlier.  That's in your second statement, which I believe you have got in front of you, exhibit 16?‑‑‑Can you just help me locate this in this pile of papers, please?


I am not sure how it is set out in your folder, Mr Cain, but it was one of the additional annexures.  Perhaps a member of your team can help.


VICE PRESIDENT HATCHER:  It's a PowerPoint presentation, isn't it?

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MR ZEVARI:  Yes.  The front page "Australian Government Department of Social Services Supported Wage System 2 December 2014"?‑‑‑Okay, I've got it, thanks.


There is a PowerPoint presentation there that goes to 13 numbered pages, albeit some of those page numbers are repeated, I think, because they are references to the slide number in the presentation.  That's part of a statement that has been tendered on your behalf in these proceedings.  Again, please correct me if my recollection has failed me, but again in response to a question his Honour, the presiding member, you made a comment earlier about whether or not open employment was suitable for all workers with a disability and you made a comment to the effect of, "Well, that can only be tested if it's tried", effectively?‑‑‑Yes.


I just want to take you to page - if you go past the first page and it has the summary and the notes pertaining to the supported wage system - we have the reference in there to the commencement of the supported wages system in 1994 and the second dot point is"


Facilitated entry to integrated/open employment.


Do you accept that a period of 24 years is a suitable period of time to test whether the SWS is a suitable mechanism for employees with a disability?‑‑‑Yes.


You do?  So there has been sufficient time to determine whether that's appropriate?‑‑‑I think you may be conflating two things.


Right?‑‑‑You're talking here about, you know, how much experience we've had of using the Supported Wage System.  That's a different sort of issue or question to the question of that amount of time in terms of exploring open employment itself, so they are two different sort of issues.  For this one, I suppose since 1994, yes, we've had a considerable amount of time and experience with the Supported Wage System and we've had like an evaluation and several other sort of discussions and reports on it, so you could say we've learnt a lot.


Thank you.  The last question I have for you, Mr Cain, this morning - I'll take you to slide number 6 in that same Attachment K.  There are a couple of dot points on the second page numbered 6 and I will just read them out.  This is under the heading "Weaknesses of the SWS assessment include:

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SWS assessment methodology is not well suited to jobs that are undergoing frequent change.


SWS assessments of such jobs would need to ensure they create opportunities for the person to demonstrate their productivity in a range of typical circumstances.


Have you read the material filed?  I assume you would have in circumstances where you have responded to a number of them from various witnesses in these proceedings that go to the question of jobs that involve frequent change?‑‑‑Yes, I have.


So you would accept that ADEs often do have their workers changing their duties from time to time?‑‑‑I think in short yes, but I'd have to say we wouldn't want to stereotype that.


Sure?‑‑‑Like it varies.


Would you say then that a point of time assessment taking into consideration tasks that are undertaken by a worker with disabilities with a supported employee at a particular time may not appropriately capture that exact thing in terms of the changing circumstances in which they perform their work?‑‑‑I would accept that.  I think that's - it's very much a challenge, yes.


Thank you, Mr Cain, no further questions.


VICE PRESIDENT HATCHER:  On that page, the reference to "Some wage results unfair to employer", do you know what that's referring to?‑‑‑I'm sorry, I can't see that on my document.


I will just check I am on the right page - perhaps I'm not - but page 6 of the PowerPoint, it's got "SWS Strengths and Weaknesses"?‑‑‑Yes.


And you will see under "Weaknesses", the second-last one says, "Some wage results unfair to employer"?‑‑‑I see it now, yes.

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Do you know what that is referring to?‑‑‑I think in the - it's unfortunate - there's a set of notes under each slide in the original presentation and that went to the issue of whether that issue of single task or few tasks versus many tasks.  You see, this was a comment from the Department of Social Services and I think they were trying to capture at that particular time the various views of that and that's just one of the views.  I don't hold that view myself, but that's one of the views that's been made about they think it could be unfair because an employee with a disability may have few tasks versus more tasks.  Like I said before, every time we've explored that in terms of research evidence, it doesn't seem to hold up on a comparative basis to the general labour force where people with few tasks are getting paid the award rate.


Thank you.  At this point, we might take a morning tea adjournment and resume in approximately 10 minutes.  We will now adjourn.

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SHORT ADJOURNMENT����������������������������������������������������������������� [11.36 AM]

RESUMED�������������������������������������������������������������������������������������������� [11.52 AM]


VICE PRESIDENT HATCHER:  Mr Stroppiana, you're next.


MR STROPPIANA:  Thank you, your Honour.

<PAUL CAIN, RECALLED�������������������������������������������������������������� [11.53 AM]

CROSS-EXAMINATION BY MR STROPPIANA������������������������� [11.53 AM]


MR STROPPIANA:  Good morning, Mr Cain, my name is Mark Stroppiana, I'm the advocate appearing on behalf of the Endeavour Foundation.  Indeed I am an employer of the Endeavour Foundation.  Mr Cain, I wanted to ask you a little bit about your experience.  In response to some earlier questioning you described or you agreed with the description of your role as a disability policy advocate; that's the case?‑‑‑That's � that's correct.


What industry would you say you worked in?‑‑‑I don't know whether I'd characterise as an industry.  It's a disability representative sector; advocacy, peak body groups, yes.


So it's fair to say, and please correct me if I am wrong, but it's fair to say that if I described the nature of the work that you've done for Inclusion Australia over the last 22 years has been about attempting to progress the rights and interest of people with a disability?‑‑‑That's correct.

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You would accept that 22 years' experience with Inclusion Australia does not represent employment or experience, practical experience in the supported employees services industry?‑‑‑Myself personally?


Yourself personally?‑‑‑That's � that's correct.


And in fact you indicated during earlier questioning that you've never worked for an ADE, have you?‑‑‑That's correct.


Now, in your statement you make reference to the National Caucus of Disability Consumer organisations, which you refer to as the Caucus?‑‑‑Yes.


Can you describe what that organisation is?‑‑‑It was not a formal organisation, it no longer exists, it was a temporary collection of national disability representative bodies across the disability spectrum of which Inclusion Australia was one of them.  It was a temporary representative mechanism between around 1995 to about 2002, or approximately, and what I'm saying is temporary is we were out � we were operating without an umbrella organisation.  Before that and after that we had an umbrella organisation formally to bring together individual national bodies, because some of them represent diagnostic categories like intellectual disability.  Some represent things like women or ethnic background and the like.


Were there any Australian Disability Enterprises represented on that caucus?‑‑‑No, no just to clarify, it's as we call consumer representation, so we wouldn't have any provider, whether that be ADE or any open employment or any other area of support.  It was purely representatives, people with disability and their families.


By consumer organisation you mean people with a disability who may consume employment services or other services?‑‑‑That's correct.


Thank you.  Now, I am interested to understand your experience of Australian Disability Enterprises, and in your statement, I don't know if you have your statements in front of you, but 14 December 2017 you describe a number of Australian Disability Enterprises you visited as part of the trial, is that correct?‑‑‑I visited the ADE's as part of the demonstration project as distinct from the trial.


Sorry, yes, the demonstration project.  Yes, that's my error.  Which ADE's did you visit?‑‑‑I visited Mai-Well, Disability Services Australia and Greenacres Association.

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And that was last year?‑‑‑I'll take your word for it.


Sorry, maybe let me rephrase.  Was that last year?‑‑‑Yes.


Apart from those Australian Disability Enterprises which other enterprises have you visited and inspected the work?‑‑‑Not � not a lot I would say, but over my journey a variety, a few from time to time.  So if I rack my memory in the late 80s I visited the Activ Foundation, for instance in Bunbury - - -


Sorry, if you can just repeat that, I just want to make a note?‑‑‑All right.  This is going back a long time, the late 80s I think I visited the Activ Foundation Sheltered Workshop as it was called back in the late 1980s.  I've been a guest of the Horizon Workshop in Adelaide, and I hope I've got their name correct.


When was that approximately?‑‑‑I'm not exactly sure.  I wouldn't be confident � it would probably either be the late 90s or early 2000s.


And other sites you've visited?‑‑‑Let me see � I couldn't tell you off the top of my head, but to be blunt not a great deal, not many.


So apart from the three sites you visited last year has it been several years since you would have been to an ADE?‑‑‑I'd say it would be a few years, yes.


You are no doubt aware that there is a whole variety of tools listed, wage assessment tools I should say, listed at clause 14.4 of the Support Employee Services Award.  Are you trained in any of those tools?‑‑‑No, I haven't.


Have you done any study of any of those tools?‑‑‑I've looked at the materials that were provided originally to the Industrial Relations Commission and other associated documents around � around those.  That's the extent.


Have you ever been present in an ADE when any of those tools were being used to assess an employee?‑‑‑No, I haven't.


So your knowledge of those tools come from research and study, is that the case?‑‑‑Correct.  Just to be perfectly clear I did observe a number of business service wage assessment, tool assessments as well, just to give you the complete picture, but as a tool no longer available.

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So that was the old BSWAT tool, was it?‑‑‑Yes.  Yes.  So just a recollection, so that was a Victorian ADE that I visited, and I'm sorry I can't remember the name of it.


Was that in connection with a Nojin case?‑‑‑It was associated.  I don't know whether it was directly, but it was around that time, yes.


That would have been when?‑‑‑Probably � I can't say for sure, but it was before 2010.


Now, I would like to take you to paragraph 21 of your statement dated 3 October, which is your first statement.  I am sorry, I have got it dated 3 October but it's October 2017.  So at paragraph 21 you say:


A SWS assessment is a comparison of agreed performance standard of what is required to earn the full award rate of pay under the relevant award classification.


That's the case, isn't it?‑‑‑That's correct.


I would like to explore with you how those performance standards are set.  So what's your understanding of how performance standards are set before undertaking a SWS assessment?‑‑‑My understanding is that the first steps is to identify what the major duties and tasks are, to establish that first and foremost.  Then the second primary step is then to � for the supported wage system assessor to determine the benchmark, and they've got a variety of different tools and processes they can use to determine that, including looking at any industry benchmarks, internal benchmarks that the employer may already have, and also the assessor can actually use some validation methods by having co-workers or others to perform the task in front of them so they can check the voracity of anything that's previously been prepared in terms of that benchmark.  Then there's a period of agreement I suppose in negotiation as whether all the parties agree that that's an acceptable benchmark in terms of the employee judgment in terms of what's 100 per cent for the rate of pay for that � for that classification of job task.

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Do you accept that the preferred or the best method of determining that benchmark is to assess the rate at which an employee who may well already be employed by the employer who may not have a disability, or who does have a disability but it doesn't affect their work can perform that task; that's the preferred method, isn't it?‑‑‑Yes, correct, and I think the best practice that we've learnt over this journey over the last two or three years of talking to experienced assessors is the more data the better. So the more accurate it will be and the better to help with agreement.  So if you can get a number of co-workers or people who are considered to work at that award rate the better because that will give you a nice range and help with that discussion about what's going to be the agreed benchmark.


So in that respect the SWS tool is ideally suited for an open employment situation, is it not?‑‑‑You can perform all those processes in an ADE as well.


If you can answer the question, is it ideally suited for an open employment situation?‑‑‑It's definitely ideally suited in an open employment situation, yes.


Would you accept that the dynamics of the workforce in an open employment situation, and I won't take you to the Coles example again, but if we compare a situation with Coles where � so there will be no apples versus apples � but if I can take you to the Coles situation where you would normally expect you would have a large workforce of employees who may not have a disability and a very small number of employees being placed in those worksites with a disability, compared to an ADE where it's the complete reverse, is it not, you have a large number of employees with a disability and a very small number of supervisors, employment coaches, et cetera?‑‑‑Correct.  It presents a challenge and some ADE's are better placed to meet that challenge.  So for instance in the demonstration when we went to Disability Services Australia they had co-workers without disability who perform those tasks on a regular basis because they get casuals in to help them complete their contracts.  So therefore they're in a good place to be able to do that process of setting the benchmark with people who are used to doing that tasks, but of course others they may have to rely on supervisors who may be a bit rusty and may have to do � remembering how to do the tasks themselves and all that, but I think that's part of the minutiae of the assessor and the employer getting together to figure out how they're going to do that process so that they can come to an agreement.

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Does it concern you that there is so much � does it concern you when applying the SWS tool, and as you describe the minutiae or a negotiation that occurs between the assessor and the employer and the employee, does it concern you that it may result in less than objective outcomes where so much of the determination of the benchmark seems to be by negotiation?‑‑‑Yes.  Look I think that's a reasonable concern and I think this is the challenge of the process.  One of the reasons why through the conference we talked heavily about, and eventually consenting to the internal productivity data, was to assist as much in terms of knowledge and understanding of productivity rates and the like.  Perhaps arguably we may not have spent as much time on the benchmark issue, because in some ways we're very generous in terms of the benchmark process of the SWS, whereas we argue and I think we all agreed that we need as much data as we can for the employee.  We accept quite limited the amount of time, resource and assessments for the benchmark, but I think that's where the agreement is the safeguard, because if there's no agreement then the assessor and the employee have to look at what else they need to do to achieve that � that agreement, and that puts pressure on the system because of restrictions in time and resource.


So if I can return to the situation of attempting to utilise the SWS tool in an ADE, would you accept that in circumstances where an ADE may not have employees, able bodied employees or employees without a disability who would normally do that task, that that creates additional challenges in applying the SWS tool?‑‑‑Yes.  Yes, it does.


Would you further accept that given the nature of the work done in some ADE's, and I don't mean to generalise, but if we can refer back to his Honour's example of employees who may be sorting forks, knives and spoons, again it's very unlikely you will be able to match a job like that in open employment, a job like that in industry where someone is paid full-time to do such a job?‑‑‑Yes.  The short answer is yes.  I think the � what the SWS handbook talks about is options in that case where you can simulate, or if it is that simple as I think his Honour said that it's something I can do then in some ways it may be very easy at the end of the day to set the benchmark without having to have that comparable task that if you can't find it somewhere, but if it's that simple then it may not be that hard at the end of the day to have a supervisor or someone to do it to establish that benchmark.  Can I just add very quickly, because I think it's an important issue, is that a lot of the discussions I've had with experienced assessors is that we probably are under � under the � you know, don't put as much effort into the benchmark as what we probably could in terms of the time and the assessment that we can put into it, but in some ways they're limited by the time and resource.


And certainly that would be a flaw in the accuracy of the assessment if the benchmark is not fit for purpose, wouldn't it?‑‑‑Look, potentially, and I think this is � as I've often said there's nothing perfect with either side of this equation, because we're coming in and doing the snapshot.  We've tried to address that through the conference in terms of the internal productivity data to enhance the accuracy, and clearly, you know, the system in terms of the benchmark has been reasonably successful.  I think the thing that we're talking about is at the edges of continuous improvement.  There's no doubt that there's need for continuous improvement in it, but at the moment we're not getting � we're not getting masses of complaints from employers or employees using the Supported Wage System in terms of that particular feature.  So we're looking at a lot of expertise comments saying we can definitely improve.


Is it the case that the majority of SWS assessments are done in open employment settings?‑‑‑Yes.

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And again if I can return to attempting to undertake an SWS assessment in an ADE setting, and certainly there are ADE's which use the SWS, indeed the organisation I work for has employees who are assessed under that system, but do you accept if you attempted and if you mandated the use of the SWS system for all employees, including what we might call our high needs employees who may have limited capabilities, that trying to assess productivity, particularly given fluctuations and performance is challenging?‑‑‑Yes, and can I just add to emphasise that, is the trial evaluation, as much as the trial had many problems in terms of the implementation I think one of the really good recommendations was it was the notion of the changed strategy, that it would require a changed strategy, and I think the tone of that kind of recommendation was that this is possible but we would have to put some time and effort into how we address those issues that you're raising in terms of benchmarking.


Can we mention the trial and the report.  If you can just bear with me, since you've brought it up we may as well deal with it now.  You have read the evaluation of the modified supported wage system trial?‑‑‑Yes, I have.


I have a copy here if you wish me to provide it?‑‑‑Yes, please.


Mr Cain, you were on the Steering Committee, were you not, for the trial?‑‑‑That's correct.


And it was an extensive trial?‑‑‑It was.  The Steering Committee didn't do a lot.  The actual trial went over several months.


How many ADE's participated in the trial?‑‑‑Look, I don't know off the top of my head, I'm sorry.  I think it was around 20.


Now, would you accept that, and probably the salient parts of the findings can be found on (iv) of the report under the heading "Conclusions".  I just wanted to ask just some general questions.  Would you accept as a member of that Steering Committee that the trial basically was inconclusive?‑‑‑Yes, it was inconclusive.  That � that was the final comment from the consultant, yes.


Inconclusive as to whether the modified SWS could be appropriately and consistently applied across all ADE's?‑‑‑Yes, and just to be clear it was like a could be or could not be.  It was very neutral in its final thing, and then it set out a number of very positive recommendations to move forward to can.

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You will see under that heading "Conclusions" the third paragraph under "Conclusions" there were a couple of issues that the consultants identified which arose from the trial?‑‑‑Yes.


Do you agree with those findings?‑‑‑I think at the time of the report � I didn't agree at the time of the report, only because I didn't think the report really established it.  They were responding to what I call consultation feedback.  I was very disappointed as the Steering Committee that we never got really any hard data to back this up except for qualitative comment, and hence why it was important I think for the conference to move into that demonstration to look a little bit more closely at some of these issues, which we did.


So you still disagree with those issues raised in that last paragraph?‑‑‑I think the demonstration report showed that these issues aren't � aren't significant barriers at all, and I can explain further if you'd like.


Thanks for that.  I want to move to � just bear with me for a second � if you've got your original statement with you � sorry, if you can refer to your first statement, the October statement, paragraph 85?‑‑‑Yes.


You have got that in front of you.  In paragraph 85 you say:


Many of the wage assessment tools currently listed in the SESA do not focus on measuring an employee's actual job tasks and instead include measures and matters with no direct relevance to the work value of work as determined by the SESA. Additionally such measures may be irrelevant to the performance by the employee of their actual job tasks.


That's your belief?‑‑‑Yes, it is.


In respect of that comment are you referring to all tools, with the exclusion of course of the SWS tool, are you referring to all of the tools listed at clause14.4?‑‑‑Yes, I am.


And that would include the Greenacres tool?‑‑‑Yes.

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For the sake of completeness I should say that the Endeavour Foundation predominantly uses the Greenacres tool, so I propose to ask you a couple of questions about that tool.  Mr Cain, I am going to hand you a document.  What it is it's a copy of an affidavit which has already been filed in these proceedings by a Kairstien Wilson and I will open the document for you to attachment A, which is a report which you probably will be familiar with, and it's commonly referred to as the Pearson report.  So I will hand that up, it's analysis of the wage assessment tools used by business services.  You may well be familiar with this report, but I will hand you up a copy?‑‑‑Thank you.


You have got that report in front of you?‑‑‑Yes, I do.


Have you seen this report before?‑‑‑Yes, I have.  Yes, I have, sorry.


Can I ask you � I am only proposing to ask you questions in respect of the Greenacres tool � so if I can ask you to turn to page 34 of that report?‑‑‑Just a moment, I'm just going to do a bit of housekeeping.


Sure.  No, take your time?‑‑‑All right, thank you.


And you have got that in front of you?‑‑‑Yes, I do.


You will see this is the section of the report, and the report deals in detail with various tools, and this is the section of the report which specifically focuses on the Greenacres tool, if I can call it that, if I can use that expression instead of the full title.  If I can ask you to turn to page 36?‑‑‑Yes.


Sorry, maybe before we do that if I can ask you to turn to page 41?‑‑‑Okay.


Now, page 41 is a diagram which tries to explain or simplify the way the Greenacres tool operates.  Do you see that in front of you?‑‑‑I do.


And you will see that there's three separate components to the Greenacres tool, one being task skills, one being underpinning work skills, and one being productivity.  You see that, don't you?‑‑‑I do.


From your knowledge and your experience of the tool you would agree, wouldn't you, that the way the tool works is that task skills and underpinning work skills are assessed for an employee and then a productivity assessment is made which determines the relevant percentage within a classification grade that an employee is paid?‑‑‑Yes.

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And then just for the sake of completeness if you turn over the page to page 43 you will see there's a schedule of percentage of the SESA wage rate which is paid to the supported employee based upon the assessment?‑‑‑Yes.


All right.  That wage table has six levels, a training and a support level, and then levels 8 through to 10?‑‑‑Yes.


If we can go back then to page 36, page 36 two-thirds of the way down you will see it reads:


The task skills for wage level A are.


Do you see that?‑‑‑Yes, I do.


Then there's ten separate paragraphs.  Can I ask you to just read through those ten separate points, and actually I may ask you then to also read the next paragraph which says, "Wage level E, the task skills include", and that next paragraph continues over to page 37.  So please familiarise yourself with those.  Have you had the chance to read through those?  Sorry, I don't mean to rush you?‑‑‑Almost, sorry.  Okay, thank you.

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Mr Cain, I would submit to you that those list of task skills under wage level A which is the lower, the lowest level under the Greenacres assessment tool after the claiming that assessment provision, all the tasks listed at level E which is the highest skill level or classification level using the Greenacres tool system, all of those skills are, I would say, directly relevant to work value, and I would say that they are measures which are relevant to the performance of an employee of their actual job tasks.  Would you accept that?‑‑‑I can't � I can't tell, because one of the major problems we've had in this journey of looking at wage assessments is that if we make a list like this we don't know the connection to the actual job that's being performed, and this is one of the risks that we've explored over the years is that by preparing discrete lists of skills and tasks similar to what we did in BSWAT by developing, you know, the four industry ones and the four thing is that we don't know whether there's a match, and this is the thing that is always missing in a lot of these documents and also the assessments, and if I can just sort of give you a comparative example is that first step that's done in the Supported Wage System where it says to list major duties and tasks it's always unclear to me when I review these things and the review if anyone shows me their assessment as to what their actual job is.  So the question for me is while it is a discrete assessment of a task there's always an unknown, an un-clarity as to is this relevant.  You see this � and this is I think always the problem.  Then if I could just add one little further comment on these kind of matrixes is that we also don't know how it's performed in the actual job task.  I think that's the other thing, because they're discrete assessments in terms of skills separate from job tasks.  We don't know whether it's done while the person's performing the task or that this is a separate assessment, and this is why we've always constantly felt that the danger of separating skill from productivity is that it can easily become an exercise in � a theoretical exercise, rather than is this performance, we don't know.


I take the point, and you would accept, would you not � you may not, and if you wish to refer to the award I am happy to provide it to you, but the classification structure for a level 2 role under the SESA award is very broad and covers many different job types and industry types from woodwork to engineering to sewing, to packaging, they are all listed as potential job types at the level 2 rate under the SESA award, are they not?‑‑‑Yes.


So I understand the point you're making in terms of this is very � maybe if we refer to item, which is item 3 on the top of page 37, which is a skill task or a level E employee and it says:


Completes all maintenance requirements, the more complex machinery and vehicles such as ride-on mowers and forklifts.


So if I am working for a disability enterprise, and certainly there are some who do this, who provide gardening maintenance services and I'm being paid a level E and I'm operating a ride-on mower, isn't that a very relevant skill for me as a supported employee?‑‑‑Yes, it is.


Thank you.  Then I would like you to consider the underpinning work skills which is the other component of the assessment used in the Greenacres tool.  So again I am going to ask you to read the skills themselves.  So at the bottom of page 37 you will see right at the bottom there's a heading � well, it's not a heading it just says:


The underpinning work skills for a level A are - - -


And then it continues over page 38, and then it provides:


By wage level E the underpinning work skills are - - -


And lists them.  So there's underpinning work skills for a level A and then for a level E employee replicated in this report.  Can I ask you to read through those?‑‑‑Very well.

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So again, Mr Cain, I would put to you that those underpinning work skills both at level A and E are directly relevant to the work value and are also directly relevant to the performance by an employee of their actual job tasks?‑‑‑We don't know.  We don't know because as the Nojin case through the statement by Buchanan is that we don't know how it's been applied to the actual job task, and I think - - -


I am not talking about - - -?‑‑‑Okay, well let me just clarify, because I understand � yes, they're relevant, and I think this is the issue.  Yes, they're relevant to that direct task, but it's the performance, of implementing these in the actual job performance is always the issue of the wage assessment, otherwise we could have somebody who's being asked to follow basic safety procedures, but we don't know whether they're actually following the basic and safety procedures while they're doing their job, and this has always been the explicit versus implicit argument of wage assessment is that performance is really the realm of wage assessments, whereas this is the realm of training, and I think this is the distinction, it's always difficult with these kind of matrices.


Sorry, if I can just ask a further question on that, and you may not be aware that this is the way the Greenacres tool operates, but the tool operates by a supervisor and/or an employment coach assessing an employee's � while performing roles using the tasks skills list and the underpinning work skills list.  So the assessment is made whilst the employee is undertaking their job.  So in that context, do you accept that this list of underpinning work skills is directly relevant to an employee undertaking their role?‑‑‑No, I don't, I don't.  I don't accept it because this has been the frustration of � looking at this issue is that in the Supported Wage System you're looking � in terms of comparing it to the Supported Wage System, and you're establishing that standard of that particular job, and both the quantity and quality, all these things come together in the job performance to assess these separately, even if it's while watching, gives us no evidence in terms of overall performance outcome of the actual job task.  It might tell us a skill, it may not depending on how that has been assessed, but it doesn't tell us anything about job performance.  And in the end, if we're not doing that then we don't have anything to compare it to the standard that is required under a classification comparison.

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Well, Mr Cain, I'm not asking you to compare Greenacres to the SWS model; they're separate tools and they're both effective and both certainly are used in ADE context.  I'm asking you to reflect upon your statement at 85, at paragraph 85 of your statement that the wage assessment tools, including the Greenacres tool, do not focus on measuring actual job tasks, instead include measures and matters with no direct relevance to the value of work as well � and further, irrelevant to the performance of the employee's actual job tasks?‑‑‑Yes, yes.  So let me clarify further then:  if we assess the person under, for instance, follows basic safety procedures, that doesn't tell us anything about work value because we don't know how that is applied to completing their job task.  That might tell us, yes, they can follow that procedure, but do we know whether they've actually completed the task to complete the product which is going to become the value?  We don't know.  I could be following that basic safety procedure, but have almost no productivity on performance, we don't know.


Well, would you accept that criteria of following basic safety procedure is relevant to the performance of an employee of their actual job tasks?‑‑‑I think it is relevant, it is definitely relevant.  But if it � is it necessary to determine job performance?  I would question that significantly


And would you accept that, if we go to the level A � sorry, the level E list of underpinning work skills, which I know you've read, but I'll direct this question directly to the underpinning work skills at level E:  you would expect, would you not, that an employee without a disability employed � at a certain classification under an award � would be able to demonstrate all of those skills?‑‑‑Well, we don't know unless we do an assessment.  I don't think we can assume anything here.  And I think this is one of the things that was pointed out in Nojin is that a lot of these sort of things aren't applied to people without disabilities employed at these sort of levels.  They don't � they're not given these kind of competency assessments.  Really it is really determining:  can they actually do this basic routine job or not?


Well, if I can ask the question another way:  do you think it would be reasonable that a reasonable employer would expect an employee to be able to undertake these tasks, a non-disabled employee employed at a level 2 classification under the SESA Award?


MR HARDING:  Well, I object to the question.  How can this witness answer on behalf of a hypothetical, reasonable employer?


VICE PRESIDENT HATCHER:  What was the question again?

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MR STROPPIANA:  The question is is that does the witness believe that a reasonably competent employee employed at a level 2 classification under the SESA award would be able to demonstrate that the underpinning work skills listed at Schedule E?‑‑‑The question is we don't know, you see, because we're talking about � if we're talking back to that apples with apples and we're talking at very low grade levels in comparison where people are expected to have direct supervision.  So for instance, encourages co-workers to maintain on task behaviour, so we're actually then taking people who're only responsible � are not responsible for other people's work under the classification, now we're assessing them on their ability to help others.  It just seems to be � going back to the notion of doing competency for competency's sake, does that relate to the job description and job expectation of the individual?  We don't know because that is never made � with any clarity for us to make a judgment on whether this is relevant, whether it relates to job performance or not.  And as I tried to say, I don't know whether it came through in my statement.  These are useful things for training and development.  I would question whether they're useful for determining job performance and wage assessment.


No further questions, Your Honour.


VICE PRESIDENT HATCHER:  Mr Christodoulou, do you have any questions?





Mr Cain, would it be true to say that many � think you gave a figure before that � I think it was 11 per cent of people in open employment with a disability had an intellectual disability?‑‑‑Correct.


Where did you get that figure from?‑‑‑That's from the Australian Institute of Health and Welfare.


Okay.  And if I could just show you � well, I'll go � before I show you a document, would it also be true to say that in terms of - - -?‑‑‑Can I just complete my answer on that so you - - -


Sorry, yes?‑‑‑So it is clear where I got it from?  Sorry to interrupt.  So Australian Institute of Health and Welfare collect the data of labour force status of people who are receiving disability support services in Australia, and they publish a yearly report.  So just to clarify exactly where it's come from.


Yes, okay, no problem.


VICE PRESIDENT HATCHER:  Can I just follow that up?  So 11 per cent of disabled people in open employment are intellectually disabled.  Is that - - -?‑‑‑No, no.  It's 11 per cent of people with intellectual disability 15 years and over who are receiving any disability support service in Australia.  So that's approximately 60 to 70,000 people.  So 11 per cent of those report having work in open labour market.

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Do you know what the statistic is in terms of open employment between those who have intellectual and non-intellectual disabilities?‑‑‑I can give you only a rough thing without having it in front of me.  You would say that for the � say, the physical disability group, they've got a higher proportion in open employment and yet � and I wish I had it in front of me, but this is published information.  Intellectual disability is one of the least, and together with psychiatric disability they're probably the two lowest proportions of those receiving service in open employment in Australia, yes.


But does it follow from that that the majority of SWS assessments are in relation to non-intellectually disabled people?‑‑‑No, that is the opposite.


It is the opposite?‑‑‑The majority of supported wage system assessments are people with intellectual disability.  It is approximately 68 per cent.  And that has been fairly constant over the period of � as I think � I forgot (indistinct) name � since 1994 when we first started doing supported wage system assessments.  The majority of the participants employed in the open labour market on the SWS are people with inte4llectual disability.


Is that because a large proportion of physically disabled people without an intellectual disability are getting the full award wage?‑‑‑Correct.


MR CHRISTODOULOU:  Would you say, Mr Cain, that the Disability Employment Services, DESs, have a higher proportion of people with disabilities that they would assess under SWS?‑‑‑Can you please say that again?


So for a person with a disability going into open employment, I guess there are various ways that they can get into open employment.  One of those mechanisms is that a DES can find a person with a disability a job, and in the process of finding that person with a disability a job in open employment there may be a need to assess them under the SWS?‑‑‑Yes, there may be, yes.


And would that be a reasonably high proportion?‑‑‑Well, again, people with intellectual disability would dominate those number; I don't have them in front of me.  So we're talking about a broad disability labour market program which DES, Disability Employment Services, about 7.4 per cent - and I only know that off-by-heart because I was talking about it yesterday � 7.4 per cent of that population of people with intellectual disability.  But they will constitute the majority of people requiring a Supported Wage System, and they will be the majority of � they're also one of the � I won't say "majority" � one of the largest cohort requiring ongoing support, so I hope that makes sense.

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So some stats that are here indicate that in terms of DES participants that go into open employment, 44 per cent of those have a physical disability, 38 have a psychiatric disability and 4 per cent have an intellectual disability?‑‑‑Sorry, where are you quoting from?


Sorry.  And I will indicate I'm quoting from the most recent discussion paper, which I'm sure you've seen, put out by the Australian Government, DSS, "Discussion paper on ensuring a strong future for supported employment" dated 7 December.  I'm happy to show you?‑‑‑No, that is okay.  I'll just clarify my previous answer:  there is two sub-programs in DES there is the � called the "Disability Management Service", there is one called the "Employment Support Service."  The 7.4 per cent of people with intellectual disability I'm quoting in terms of the employment support service because there is almost no people with intellectual disability in the other program because the other program isn't an ongoing support program, it is for people that only need just short-term assistance.  So the 4 per cent, I think, in that is talking about the whole thing, the two programs.  I'm always focussed on the employment support service side of it because that is where people with intellectual disability typically go to to get support, yes.


Okay, thanks.  You said earlier that you're � of course, your preferred - - -


MR HARDING:  Your Honour, can I just say we seek to tender that document.  We don't have copies at the moment.  We might deal with that on Monday.




MR CHRISTODOULOU:  You said earlier in your evidence that you really didn't think ADE were an appropriate or appropriate organisations to really be able to push people into open employment.  Was that not your evidence?‑‑‑Not appropriate, just not effective.


Not effective, okay.  Now, I want to also be clear about your representation, so are you here representing yourself in these proceedings or are you here representing Inclusion Australia?‑‑‑I think I may have answered this one earlier:  myself.


Yourself.  And it is true to say that therefore there is no appearance on behalf of Inclusion Australia in these proceedings?‑‑‑That is correct.

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Okay.  Now, could I refer you to a site, and I'll give you a look at this in a moment, but it is a website called "Wage Justice Australia"; I'm sure you're familiar with it?‑‑‑I am.


So Wage Justice Australia website is supported by Inclusion Australia, it is also supported by AED Legal and it is also supported by PWD who in fact are in these proceedings by way of the submissions.  Is that correct?‑‑‑That is correct.




MR CHRISTODOULOU:  I think it stands for "People with Disabilities."


(To witness) Now, what I would like to do is take you to Exhibit 5, and I'll ask Mr Rogers to give you a copy of what I would like to take you to.  And if you go for the bench, it is attachment 10 in Exhibit 5.


VICE PRESIDENT HATCHER:  So what was Exhibit 5 again?


MR CHRISTODOULOU:  It is my witness statement, Your Honour, dated 15 November, think.


VICE PRESIDENT HATCHER:  Just hold on a second.  I got them separated.


MR CHRISTODOULOU:  So you'll see first page, these are extracts out of that website, it says in the last paragraph, "There are over 20,000 employees with a disability working more than 300 Australian disability enterprises across Australia.  The majority have experienced discrimination and they have been underpaid for many years because their wages have been determined by using competency-based assessment tools."


VICE PRESIDENT HATCHER:  Sorry, Mr Christodoulou, what attachment was it?


MR CHRISTODOULOU:  That is attachment 10.


COMMISSIONER CAMBRIDGE:  To which of your statement?


MR CHRISTODOULOU:  It is the statement of 15 November, commissioner.  And it is Exhibit 5.

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VICE PRESIDENT HATCHER:  So the document starts with, "Why we're here."  Is that it?


MR CHRISTODOULOU:  Yes, "Why we're here."  It is an extract from the website.


(To witness) So that paragraph that you can see in front of you, can I ask, given that your organisation are obviously supporters of this particular website, how you arrived at the conclusion that the majority of workers were being discriminated in disability enterprises?‑‑‑Well, I think it expresses the fact that so few are on the Supported Wage System and our deep concern with competency-based wage assessment.  I think it is - - -


So it is not a matter of fact?‑‑‑I think it is an expression of our � well, of all those organisations who have concerned at the wage assessment, the dominating or the majority of participants are subject to those sort of wage assessments which we don't believe meet a discrimination sort of standard.


VICE PRESIDENT HATCHER:  And when you say "we", does that mean you adopt the views on this website or � that is you agree with the views on the website?‑‑‑I think I agree with the principle of it.  I don't think I would have written it that way myself but � but the intent, I think, is to point out that, "Here's an issue to great concern to these national bodies about the use of these wage assessments."


MR CHRISTODOULOU:  But the reality is it is not a matter of fact, is it?  There has only been one wage assessment tool that has been tested, which has been the BSWAT.  Is that true?‑‑‑Yes, yes, that is true.


Thanks.  If I then take you to � I think it is the � p.3, so if you go over and you'll see there is a diagram there.  And if I can interpret that diagram, and tell if I'm wrong, I'm going to interpret it is that you would like ADEs to adopt the supported wage system.  You want the removal of all competency-based wages.  You want to strengthen the government's support, and then you want to enable people with disabilities to then exit out into open employment.  That is the model that you would prefer?‑‑‑I would just clarify one thing there:  I think the final one is meant to look at the provision of that best practice as being an option that I spoke about earlier.  So when it says - - -

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But it is not specifically written there?‑‑‑So we're not talking about (indistinct) we're talking about enabled them to have that particular option and choice so that they're not limited to just a choice of ADE in many communities.  So that is the intent of that.


But it is not explicit.  It does not actually say, "We want to change the way ADEs operate"?‑‑‑No, no, it doesn't.


No, okay.  Now, can I take you to p.4, and it is the second heading, it says, "What are competency-based wage assessment tools?"  And I'll take you � just the line that is below the reference of the Federal Court, and it says, "Competency-based wage assessment goes beyond an assessment of the actual job tasks a worker is employed to perform.  Often competency is assessed in an interview and people with an intellectual disability may have difficulty using abstract language to answer questions thereby failing competency tests.  This would result in a low assessment and wage.  Competency tests may ask an employee if they know which meetings their managers attend.  Not knowing the answer does not mean the employee is incompetent in performing actual tasks."  Now, I read that and I read into that that this is one of your major concerns about competency-based wage assistance?‑‑‑Yes.


Now, do you know that the Greenacres tool has never ever used a form of test or interview to determine people's wage levels?‑‑‑Yes.


So you would agree that it doesn't suffer from that problem?‑‑‑No, no.  I think this is very much a reference to the lessons from the BSWAT.  I think the overall principle about the relevance to the actual job is perhaps the piece that I would emphasis, so yes.


Thank you, Mr Cain.  There has been a bit of talk about segregated employment.  I'm not sure that is a term I like to use because segregation, when I've ever known of it, has been in the terms of forcing people to be somewhere where they don't want to be, and racial segregation or forced movement to another place.  So I guess a better way possibly to describe an ADE might be a congregate model maybe where there is more people with disabilities working than people without disabilities.  Would that be a better way of describing it rather than segregation?‑‑‑I think, yes, language would be helpful.  I like using the word "grouping".


Grouping, okay, I think's - - -?‑‑‑I think the word "segregation" goes back to a time when we were trying to � as the object of the Disability Service Act still is, and it was integration, so if you talk integration the opposite is segregation.

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Yes, okay?‑‑‑So, you know � and I know that people are uncomfortable with the word and I know there are many people that just simply say, "Look, you know, let us just call it what is it.  You know, we're segregating a group of people in a separate business."  Probably the best way of saying it is, "We're grouping a number of people with disability in a business rather than segregation" because I know a lot of people find it difficult to hear the word "segregation".


So and then you say, "We're grouping."  Who's grouping?‑‑‑Well, that is the choice of the organisation that is providing that employment model.  That is a choice for that disability organisation to do that.


But isn't it the choice of the carers or the supported employers that attend those - - -?‑‑‑It is both, it is both.  You see, I think this is the things that � at all levels of that stakeholder, everyone is making a choice, and if your organisation wants to produce an offer, a grouped-based employment setting such as an ADE, that is a choice that you make as a provider just as much as it is a choice for the participant and family just as much as it is a choice for the government to fund.


So in terms of ADES, you would accept, wouldn't you, that may supported employees get to their workplace by their own means, many on public transport:  you would accept that, wouldn't you?‑‑‑Yes.


And as they do that journey to work they get to engage with other members of the public, their friends, their mates, so they get to engage in the community.  You would accept that, wouldn't you?‑‑‑Yes.


And you would accept that when they arrive at work � and, sure, whilst there are more people with disabilities in some of those work places, they still get to engage with their trainers, their supervisors, the managers, and even customers that sometimes deal with those ADE businesses?‑‑‑That is correct.


You would accept that, wouldn't you?‑‑‑Yes.  I think just to � yes, but I would say that the notion of integration is the notion of being with people who aren't paid to be there for you; that is the crux of the difference between the two, so co-workers without disability and the like, but I take your point.


Yes.  But there are some ADEs where in fact there are many people that work alongside people with disabilities on the production line?‑‑‑Yes.

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And you would accept a really important part � apart from all the other benefits which I won't go to that are in the witness statements � is that people earn an income, as low as that income in your view might be?‑‑‑They get paid.


They get paid, don't they?‑‑‑Yes.


And that payment supplements their pension?‑‑‑Yes.


And I think the statistics out of the report that we'll hand up tomorrow shows that the average per week of people with disabilities is � I think it is $121 a week, so they earn $121 a week and so that supplements the pension they also receive from the government.  You would agree with that, wouldn't you?‑‑‑Yes.  I don't know where you're quoting the 121 from, but in principle, yes.


Well, yes, it is from this discussion paper document just recently released?‑‑‑All right, okay.


So the latest stats that have come out?‑‑‑All right.


And you would agree, wouldn't you, that having that form of income then allows the person who has a disability to actually engage in other forms of community life; they can go to the pub, they can go out with their friends, they can go shopping, they can go bowling.  It is disposable income that they otherwise have that they wouldn't have if they were just on the disability support pension?‑‑‑Yes, absolutely.


That is right?‑‑‑Just as it does for a person with intellectual go into work and open employment.


That is right.  So you weren't - - -?‑‑‑Getting paid is a good thing for � good to get money.


That is right, and so - - -?‑‑‑It pays for things.

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And so yesterday Mr MacFarlane had sort of indicated that he thought there may be a range of people in disability enterprises that shouldn't be there really, that they probably should be in some day program.  Do you agree with that?‑‑‑I would in principle.  I think, you know, clearly that there is � you know, and I think that goes back to, I think, that example before about the notion of the real job.  I think, you know, if the purpose of the person being there is really simply for occupation for the day then the question is, you know:  what is better?  And I suppose that comes down to choice and preference and the like, but, you know, clearly there are cases where people are simply being kept busy during the day.  So I can imagine someone making the comment that they may be better off doing something that is preferable, if that is their choice.


Yes.  And that is making a comment about someone else's life who chooses to be in an ADE earning income and using that income to do other things?‑‑‑Yes.  And I think this is the notion of where we're heading with current policy of NDIS in terms of choice, and, you know, clearly a lot of my work is about trying to offer the choice of moving into the open labour market trying to build that capacity to provide that option/choice, but clearly there is other things as well that is happening with the NDIS in creating options for other things that are non-employment et cetera.  So I think that is the world of choice.  And we were very luck, as I was reminded by international guests yesterday we're a rich country where we can offer such a broad range of choice.


VICE PRESIDENT HATCHER:  Mr Cain, with this concept of, "I started, I know about the real job and the not real job" there may be an intermediate category where, for example, you have a production line or a process where you get from A to B where you would employ for non-disabled people maybe one or two people to do it, they would do all the functions in that process, but in ADE they break it up into, for example, six or seven or eight discreet tasks.  So the disabled people doing tasks which the non-disabled people will do, they've just been broken up and they only do a discreet aspect of it.


Does SWS take any account of that?  So they're still productive jobs but they're not jobs that you would get a non-disabled person to do?‑‑‑Absolutely.  It dominates the application of a supported wage system, and I think as � I can't remember which one of my statements where I try to point out that almost all of the Supported Wage System employees in open labour market are working in customised jobs where it has been � the job has been broken up, or it has simply been created.  In fact, that is becoming more the norm than doing what they used call "job carving", take an advertised vacancy and carving it up, taking some tasks out, giving the other tasks to another and creating two different positions, so the person without a disability (indistinct) new position without those lower-order tasks and create a new position that is all lower-order tasks, but the current trend is to actually just create a position that adds value to the business and they will be a collection of lower order tasks.


VICE PRESIDENT HATCHER:  One example I gave:  SWS will just take the discreet task the disabled person was doing, measure it against some sort of benchmark and then assign a percentage regardless of the fact that the job has been carved out for the specific purpose of having that person being able to do it?‑‑‑Correct, yes.  That is the main process because � and it just comes down to the fact that most cases people with intellectual disability cannot perform all the tasks of what we traditionally have in job vacancies.

***������� PAUL CAIN������������������������������������������������������������������������������������������������������������� XXN MR CHRISTODOULOU


Could I just qualify that a little bit because while that is true, in the Nojin case where the Marshall Consultancy reports that were put there was sort of revealing that while that is the thinking and the belief that there is a lot of job customisation going on for people without disabilities in the labour market that we are probably not acknowledging.  So it is not cut and dry between people without and people with disabilities, and I think that is what was revealed in those sort of studies is that there is a lot of customisation that happens in the labour market per se, so no one is restricted to just doing this.  And I think the other comment that Marshall Consultancy made was that there is a huge disparity between job descriptions and what people actually do, hence why � that is why they were sort of all talking, "We have to be careful with wage assessment based on things that are sort of there and sort of theoretical" versus what (indistinct) actually do, kind of thing, and it was always � in their view it was less than � always less than what the job description and job duties actually aspirationally wrote so - - -


VICE PRESIDENT HATCHER:  Right.  You'll be a while longer, Mr Christodoulou?


MR CHRISTODOULOU:  A couple more questions, that is all, Your Honour.


VICE PRESIDENT HATCHER:  Right.  Mr Harding, when we get to Ms Power, how long do you think she will take?


MR HARDING:  I would have thought more than an hour.


VICE PRESIDENT HATCHER:  So we'll be in a positon to finish by 3 o'clock.


MR HARDING:  I hope so, Your Honour.


VICE PRESIDENT HATCHER:  Right.  Well, you ask your questions, Mr Christodoulou then we'll adjourn for lunch.


MR CHRISTODOULOU:  Thank you, Your Honour.

***������� PAUL CAIN������������������������������������������������������������������������������������������������������������� XXN MR CHRISTODOULOU


(To witness) It is true to say, Mr Cain, that there is a big difference between a supported employee working under the Supported Wage as in a Coles store and the ability of, say, Coles to be able to find that person a job that might just be one task related and being able to absorb the cost if there is a cost involved in that to an ADE that employs lots of people that can only do one or two tasks?‑‑‑I think the first part of your proposition I would agree with, and I think this is what actually I'm excited about in terms of inclusion is that we're discovering that there is great scope of the mainstream employers to include people with intellectual disability, and that gets me out of bed in the morning, right, so that is � and the second part of absorbing is that � I wouldn't agree with.  As I said before is that the best practice is saying that it has to provide a benefit:  that is what is almost the trigger to agree to employ, and we have to show benefit.  If we're presenting it as a charitable thing that they're going to have to absorb costs, either it is a no or the job falls over very quickly.  It has got to be sustainable.  It has got to be sustainable.  So the absorb cost thing I think is bandied about a lot, but most employers I talk to they talk about it affecting their bottom line.


Okay.  And so - - -?‑‑‑In a positive way.


But we're not there yet really in terms of the labour market being prepared to take on, you know, thousands of people with intellectual disabilities.  We're not there yet, really.  Because from my point of view, if I could find - - -


VICE PRESIDENT HATCHER:  The question is, "We're not there yet?"






MR CHRISTODOULOU:  We're not there yet?‑‑‑We're on the way and I'm pushing.


Okay, all right?‑‑‑And, you know, the potential is there.


The potential is there.  No further questions, Your Honour.




MR STROPPIANA:  Your Honour, can I just raise one matter very quickly?


VICE PRESIDENT HATCHER:  No.  Can you raise it at 2 o'clock?  All right.  We'll adjourn now and resume at 2 o'clock.

<THE WITNESS WITHDREW����������������������������������������������������������� [1.05 PM]

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LUNCHEON ADJOURNMENT���������������������������������������������������������� [1.05 PM]

RESUMED���������������������������������������������������������������������������������������������� [2.00 PM]




MR STROPPIANA:  Yes, your Honour, just a very quick matter, if I can, just in relation to the proposed order for witnesses - - -


VICE PRESIDENT HATCHER:  Can we finish this witness first?




VICE PRESIDENT HATCHER:  Ms Walsh, did you have any questions of this witness?


MS WALSH:  Yes, I have.


VICE PRESIDENT HATCHER:  All right, go ahead.

<PAUL CAIN, RECALLED����������������������������������������������������������������� [2.01 PM]

CROSS-EXAMINATION BY MS WALSH���������������������������������������� [2.01 PM]


MS WALSH:  Thank you, your Honour.  Good afternoon, Mr Cain?‑‑‑Hello.


In the interest of speed, I'm going to try and just isolate this to some series of questions, prefaced by the comment that Inclusion Australia doesn't appear to have made any submissions to these proceedings in their own right, so this is probably the only opportunity we may have to get some information or some, I guess, agreement or disagreement from Mc Cain as the person who is here in his own right.  Is that correct, Mr Cain?‑‑‑That's correc.t


All right.  So, given that, could I take you to your paper, your comments - I think it's Exhibit 16, as made on 14 December 2017 - just to take you to point 54, if you have that there?‑‑‑Just a moment.


And it's the third paragraph from the top of page 12 - sorry, it's Exhibit 17, your Honour?‑‑‑I don't know which one it is here.

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VICE PRESIDENT HATCHER:  So that's the third statement - - -?‑‑‑The third one?


MS WALSH:  Point number 54, page 12 of your document dated 14 December 2017?‑‑‑I think I have it.  What paragraph was it, sorry?


It's point 54, page 12 of that document?‑‑‑Yes.


I just seek a small clarification.  You state that, "People with significant disability have been regularly placed and supported in open employment since 1986."  Based on what we've heard today, and the latest statistics, would that be more accurate if it actually quantified or qualified the fact that that doesn't necessarily refer to people with intellectual disability?‑‑‑No, it does refer to - I should have put the word "intellectual" in there, but it's deliberately meant to be "intellectual disability".


All right, so you would like that adjustment made?‑‑‑Yes, please, if that's possible.


Well, I don't know; that's a matter for the court.  But it's certainly - it's my understanding of what is actually happening, but you are saying that, "People with significant intellectual disability have been regularly placed and supported in open employment since 1986"?‑‑‑Yes.  Just to help and clarify, the intellectual disability group would make up a huge cohort of that broader categorisation of "significant", so if that helps -


Well, that's probably not what the current statistics - anyway, we'll leave at that, thank you, Mr Cain.  If I could now take you to some documents, and if you agree with these documents, that they are actually from the Inclusion Australia Website, then there is no need to put them into evidence, but if that is required, it would probably be easier to do that next week in the submissions.  But, as Mr Cain is here, I think it would be appropriate to run them past him.  So, in these proceedings, Mr Cain, you have said that Inclusion Australia - that opinions you are putting in as expert evidence, or professional evidence, are not necessarily those of Inclusion Australia; they are your own?‑‑‑That's correct.


All right.  In your position as a staff member of Inclusion Australia, which your website says, is, "The national and leading voice on issues of importance to people with intellectual disability in Australia"; that is correct?‑‑‑That's correct.

***������� PAUL CAIN��������������������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


So you are making comments as a staff member of Inclusion Australia, but doing so in your own right?‑‑‑No, I'm just making my comments in my own right.


In your own right.  Thank you very much for that.  So going, again, to comments from Inclusion Australia, are you responsible for any of their media releases?‑‑‑No, I'm not.


You're not.  So could you advise who would make those?‑‑‑That would be the - that would be the - at the moment, it's the Chair.  We currently don't have a Chief Executive Officer at the moment, and that has been moved to our Chairperson.  And that's due to recent defunding, or restriction in funding and limiting funding, so we're working on - the Chair is the default responsible person for any media statements.


All right, then.  So a statement that says, "Inclusion Australia does not wish ADEs to close" is something that we would need to take up with Inclusion Australia?‑‑‑If you wish.


All right, thank you very much.  The other issue is that in previous evidence as an expert witness in Nojin and, more previously, in the AAT, and additionally, in one that was the NCID, when you were the media person there, you have agreed that Inclusion Australia has repeated recognised that fair wages determined by the SWS would increase wage costs for ADEs, and that the Commonwealth should provide temporary funding to assist ADEs to make the transition.  Is that your position, your personal position?‑‑‑That was the position that I held to prepare - I'm just trying to remember the correct proceeding - it was with the Human Rights Commission, in response to the applications for exemptions under the Act.  And that was one of the points that not only Inclusion Australia, but other national peak bodies made, in terms of - moving to the supported wage system would likely incur costs, and that we were asking - I think we were the first group, actually, to actually suggest that the Commonwealth Government actually assist with bridging funding, which they have, to some extent.


And there is an acknowledgement, though, that there is an increased cost with mandating that?‑‑‑Yes, it is.


The other document that - and this has been entered into evidence, and you would be aware of it - that's the evaluation of the modified supported wage system trial, which you have already said you're familiar with - so that was basically - within the conciliation progress and the trials, it was agreed by all parties there, too, that the issue of costs of putting in the SWS was not part of that whole deliberation.  Do you agree that that's a correct statement?‑‑‑My recollection of that report was that the consultant said they couldn't make a judgment on costs, due to the fact that it wasn't a consistent implementation of the actual tool, so they couldn't draw any conclusions on cost.

***������� PAUL CAIN��������������������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


And we, as participants within that conciliation, accepted that, and it never really raised during any of the deliberations; is that correct?‑‑‑I think it was accepted.  I can't remember any party disagreeing with that view from the consultant.


No, that's fine.  If I could just move on to some of the comments that have been made here today.  You have said that in relation to moving people with disability into open employment, that you can only know whether all people with a disability can be placed in open employment if we actually try that.  Do you agree that's one of the comments that were made?‑‑‑Yes.  That's the most simplistic way of putting it.  It's based on -


I accept that, I'm not arguing with - - - ?‑‑‑Yes, all right.


I'm just saying, that's the comment that you made?‑‑‑Thank you.  Thank you for your support.


And I would say that - would that not be predicated upon job availability with the marketplace in which you are trying to place those people?‑‑‑No, it's not.  What the evidence is telling us is that the job customisation, which is about creating positions that aren't currently advertised - that's one of the distinctions between open employment for other disabilities versus people with intellectual disability, is that you - if you try to just respond to advertised vacancies, the likelihood of getting high outcome rates is very low.  So when it comes to availability, it's a question of actually negotiating and customising, with direct engagement with employers, to identify opportunities, to improve their business, essentially.  We call it mutual benefit; someone who would like the job, and a business that has some solutions that need fixing.


All right.  So, where I come from, which is Bundaberg in Queensland - and it's a regional centre, and the issues, as you would know, coming from Western Australia, regional centres are often different to urban and metropolitan and suburban - that we are classed - sadly - as the dole capital of Australia.  We have 4465 who are unemployed.  We probably have about 600 or 700 who are within that market in that area, within ADEs.  So would you say, reasonably, that the chances of getting someone to move out of an ADE into open employment would be more difficult in that particular marketplace?‑‑‑Probably most likely.

***������� PAUL CAIN��������������������������������������������������������������������������������������������������������������������������������� XXN MS WALSH


Then, if we could overcome some of that, from a regional perspective, or national perspective, and we did move some of those people out into open employment, and, for whatever reason, it didn't work out, and that disabled person had a fall-back position of going back into an ADE, wouldn't the process of moving people from supported employment into open employment, apart from - well, I would insist that it also depends on job availability, but you and I would disagree on that - would it not also depend on the systems of support that you have in place should that person not make it?  Because if that person then returns to the ADE, there are many families and carers - including me - who wold tell you that the issues faced by that person with a disability and the family carers are made more complex when that happens?  So would not successful transition from supported employment into open employment depend on the processes that individual ADEs have in place?‑‑‑In my view, the skill required to move a person with an intellectual disability into open employment, either straight from school or from an ADE, are very similar.  And I think that the elements of job customisation, job creation, job training, job matching, ongoing support, supported wage system are equal.


It's just a different starting place, and as I was trying to say before, it's a starting place that hasn't been successful, because the skills - and this is not just to ADEs, but the skills that ADE sector have - and many open employment providers also don't have those particular skills.  So to me, it's not just a matter of labour market capacity; it's also about skilled support capacity, and this is one of the challenges that the forum yesterday in Geelong, together with the NDIS people, was to talk about that capacity.  Because if it's possible, with the right support, one of our challenges is to get that right support as broadly and as available as possible.


MS WALSH:  Thank you for that.  The other comment that you made, which I think is also relative, is the issue of segregated settings, whether they're in education, or employment, or community.  You would prefer to see that word, "segregation" as group settings?‑‑‑I think it's more helpful as a change strategy.  I think one of the - if I look back over the time since 1986, I think that we haven't been very good at teaching inclusion, and bringing the community along.  So in some ways, "segregation" creates a bit of a fire, rather than, "Let's explore strategies and ways of how to do this."  So "grouping" is, in some ways, a little bit less offensive to those who have been used to segregation, or had been supporting segregation.  So to make a change in our society, where we historically have done segregation, where we've grouped people, to an inclusive society, we probably have to look at better language, better strategies to help the communities make that change.

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So would you see, Mr Cain, that where society - and, sadly, we don't have the benefit now of retrospectively changing a lot of the stuff that has happened, whether the starting point is from birth, or from education, or from transition to work.  So if we look at group settings - so we have the Institute of Sport in Australia.  We have the Conservatorium of Music.  I personally went to an all-girls boarding school.  And in all of those issues, I never saw that, and none of these people actually see that as segregation.  They actually see that as meeting a specialised need of the group of people; retirement villages.  Would you agree with that?‑‑‑Not entirely, because we're very fortunate, in this rich country, to have a public education system that people can choose, or they can go to a private education and all that.  I think the issue with segregated education and inclusive education is that it's not always been a choice.


When I first started working in the disability sector, in childcare, I was helping children with significant disability move from childcare into schools, only to be told that they weren't allowed to go into the schools.  We were fighting just very basic rights of entry and access.  So to me, it's a very different kind of issue that we're trying to break down.  That includes - to be harsh, and this is where the blunt language becomes a little bit difficult, when you're trying to create change, is that there's actually no comparative educational science, to say that a child with intellectual disability is better off in a grouped setting.  There's no educational advantage.  However, saying that to a society that's struggling doesn't really help that much.  So we've still got a long want to go.  There's a lot of myths and misconceptions about grouping and segregation out there; not only in education, but in employment, and housing, and all sorts of things.  We are infants when it comes to inclusion.  We've only been doing it since 1986.  We've probably been doing segregation for hundreds of years.


MS WALSH:  All right.  If I could just move on - there's just two more small issues.  One is in relation to the Disability Support Pension.  We've had suggestions put forward about how, when you equate whatever level of income it is that they may earn, in whatever type of employment, they're on the Disability Support Pension.  It actually gives them more of a disposable income if they can earn some income from another source.  I think the things that I find when we do that exercise - and I speak as a professional accountant - is that we never ever factor in, or we don't appear to factor in the extrapolated cost of the concessions that they receive because of the Disability Support Pension.


And in that, there are health concessions, which, when you compare to a non-disabled person on Newstart, or some of those issues, they certainly are - I'm not saying it's better all over, but there is an issue that brings them, with their Disability Support Pension, closer to the benefits and the actual income that a person on Newstart might earn.  Is that a reasonable comment?‑‑‑Let me try to respond - because it is an important issue that I speak to families a lot, because open employment - one of the barriers is the fear, although it's not true, the fear of how it's going to impact the Pension.  So the message that I'm always trying to give is that you're always better off.  It's an extraordinary amount of weekly wage you have to earn before you lose your pension.  So what I'm most worried about in Australia at the moment is that that information, about how that income support system, is very poorly understood.  And I think we saw, in some of the submissions, and I commented on it, that even our providers aren't providing - they could improve, in terms of the information to give, because I've met families who have made decisions to reject a job, because they're worried about how it's going to affect their pension.

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VICE PRESIDENT HATCHER:  So, Mr Cain, the monetary pension tapers when you earn additional income, but what happens to the non-monetary benefits?‑‑‑They remain.


As long as you receive any amount of pension?‑‑‑Like the Pension concession card - yes, any part pension, all the other benefits remain.


Thank you.


MS WALSH:  Thank you, Mr Cain.  Just one more question.  When we were, I guess, visualising the issue of a particular employee who was doing things like sorting cutlery, because that possibly was the only discrete job that that particular person would do, I got the impression that you felt that if a person - and I'm not necessarily referring to that person, but if a person was doing something that was unproductive, for want of a better term, that they would be better placed, or they would be better off in a day service, or in another program?‑‑‑I wouldn't like to make that judgment, because of where we are at the moment, in terms of the direction of choice and preference.  And also, the other thing I would say is, be careful not to rule a line, saying that that person could never be productive.  I think it could be that that particular opportunity isn't in that particular circumstance.  So one of the options could be to look for a better job opportunity, a better job match, kind of thing.  But all preferences - and this is one of the luxuries that we have in Australia, is that well-funded options, from employment, to day activity, to all sorts of things, with $22b being spent on the National Disability Insurance Scheme, it's a luxury that - we are the envy of the world.


So you would disagree, then, with Inclusion Australia, which, in their formal statement - and you are a staff member of that - does not wish ADEs to close, where ADEs are viable businesses, paying real wages, they must be supported to continue to provide employment to people with intellectual disability.  Where ADEs are not viable, the Commonwealth Government must consider the option of those services becoming day services, so that they continue to support people with a disability?‑‑‑Yes, and I'm too sure when that was made, but, like my answer before, I think we've moved on from there, and I think the only thing that's remained is that issue of viability.  And that's been the message for ADE, and before that, business services, when they were called - all the reform reports, and mostly those reports have come from KPMG, and that's been - the direction is to run as a commercially viable business.  Then, the issue comes, if that can't be, then we're looking at difficulties of meeting other obligations, like wage - appropriate wages and appropriate employment, and all those kind of things.  So that's just a fundamental issue of real employment, is that commercial viability.

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So if we use the phraseology which you have, over the years - you and I probably - I guess there would be more that we agree on than we disagree on, but the things we disagree on, we've been fairly outspoken about.  So the phraseology, "meaningful employment" - so if, in that case, it might be someone sorting cutlery, it might be someone doing the one forever and ever, and there may not be an opportunity within that employment for that person to change that - so "meaningful employment" to families comes back to meaningful employment for the person, not to somebody else's, I guess, perception of what that meaningful employment is.  Do you agree with that?‑‑‑I think, essentially, in principle, yes, because another factor of the evidence of successful and sustainable employment is it's something that someone likes to do, and prefers to do, as that applies to all of us.  If we don't like something, we're probably not going to stay in it for very long.  So the preference thing is important.  I think the meaningfulness has always been around sort of fundamental baseline things, like, it has got to be a commercially operated, viable business that's running on business lines, and they're paying proper wages; I think that's the notion of meaningfulness.  But I take your point about, the meaningfulness for the individual is very important.


Well, I guess I use it in relation to my own personal experience, and also the families that we represent, and that is that, in my son's situation, when he had to move from and ADE to a day service, or day program, that he never really recovered from that loss of, I guess, social value.  It's always different, but meaningful employment to us is meaningful employment to the person involved; not us as families, not anybody else, but to that particular person and their choice.  You wouldn't disagree with that?‑‑‑No.


Thank you.  Thank you, your Honour.


VICE PRESIDENT HATCHER:  Mr Cain, in answer to the question, you seem to accept that the imposition of SWS as a universal tool for supported employment workplaces would have a cost associated with it?‑‑‑Yes.


Is that based on some sort of study or analysis?‑‑‑No, it's just estimation.

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What is the estimation of the costs?‑‑‑Well, this is a very crude estimation that we prepared for the Human Rights Commission.  Why I say "crude" is, it's very hard to get the necessary pieces of data to make a decent estimation.  So when we prepared an estimation for the Human Rights Commission, we used the last available public information on wages in ADEs, and this is going back to the mid-2000s, like 2004/5.  We used to get published data of workers, and how many were being paid in bandwidths.  We used to get that; we don't get that anymore.  So we did a projection from the last set that we had, and we added on changes in minimum wage, and we used the average productivity rating that was published to the Senate Estimates review, looking at BIS-WAT.  They publish the average productivity rate, and we use those figures to project, if you applied productivity rate to all 20,000-odd, plus then factored in the changes to the minimum wage rate, I think we came up with a figure of around $70-78m.


Is that quantifiable as a percentage of the wage bill?‑‑‑Not off the top of my head.  And then we also projected how much savings that would be, because that would then - leading on from the discussion on the Pension, there would be a clawback to the Commonwealth.  It was generally half, they would generally get half back, but the total income for the employee would be higher, because the part-wage and part-pension is always higher.  So that was just a very crude projection, and that led us to saying, "All right, that's quite a short-term impost", and we suggested help with wages.  The Commonwealth does have a wage supplementation budget currently that they're offering.  We came to the view that this is a change strategy, and that also falls in line with those, I believe, positive change recommendations from the SWS modified trial report, about a change strategy.  I think that wage supplementation is probably a key part of that strategy.


Thank you.  Any re-examination, Mr Harding?

RE-EXAMINATION BY MR HARDING������������������������������������������ [2.26 PM]


MR HARDING:  Yes, two questions, your Honour.  Mr Cain, you were asked some questions by Mr Stroppiana.  Firstly, it was put to you that if the SWS was mandated, trying to assess fluctuations in performance may be challenging, and you agreed with that.  Do you remember that line of questioning?‑‑‑Can you just repeat that?  Sorry.


It was put to you by Mr Stroppiana that if the SWS was mandated, that assessing fluctuations in individual work performance is challenging?‑‑‑Yes.


And you agreed with that?‑‑‑Yes.

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Can you tell the Commission whether or not the element of workplace data may have an impact or otherwise on that answer you've given?‑‑‑Yes.  I think that one of the modifications that has been consented to offers a really great opportunity for the ADEs to actually implement internal workplace data collection.  And this was something that was being done informally, before it was (indistinct) for the award, for the modified supported wage system.  The idea is that that will try to address the concerns that were raised, about it being a snapshot assessment on one or two days.  Now, we'll have the snapshot, but we'll also - the assessor will have the - well, let's say the ADE has the opportunity to present data over time, to put into the mix of consideration.  Now, that may confirm the snapshot, because there are some people who are consistent, in terms of their productivity, or it may help employees that may have broad variability.  So I think it's an excellent way forward, in terms of addressing that concern of fluctuation in somebody's productivity over time.


And Mr Stroppiana took you to what is termed the evaluation of the modified supported wages system trial, which is Exhibit 3 on my document.  Do you still have that in front of you, prepared by the ARDT consultants?  No?‑‑‑I don't think so.


All right.  My friend is about to hand it to you.  If you could go to page IV, please, and the heading "Conclusions", which is about halfway down the page.  Have you got that?‑‑‑Yes.


It was suggested to you - well, what was put to you was the words in the first sentence, which is, "The trial has not provided a clear case that the modified SWS can be consistently applied by ADEs and assessors to provide accurate assessment of supported employee productivity."  You were asked about that, and you disagreed.  Do you recall that?‑‑‑Yes.


You referred in that connection to the modified and supported wages system demonstration project and suggested that you could explain further.  What did you wish to say?‑‑‑Thank you.  Yes, I think that because it was unclear and the final report got a lot of feedback on particular issues that they thought were problematic so that included doing assessments of people working on production lines and in teams or groups.  There were other things as well including concerns about that issue that we've already heard today about single task or few tasks and many tasks.  They were really the subject of that further demonstration of the modified and supported wage system in Mai-Wel, Disability Services Australia and Greenacres.


In my view I thought the demonstration was very successful in showing that doing assessments of employees in production line was more than capable of being done well.  The assessors that filed that report repeatedly said at each ADE that they had no difficulty applying the supported wage system for employees on production lines.  In regard to the teamwork or the group work, unfortunately there was only one example and that was at Mai-Well, so there was no group work, sort of, at Greenacres or Disability Services Australia, and that one did prove challenging, there's no doubt.  But the final analysis of the assessors was, while it is challenging they believe it is possible.  I think they referred to needing extra time and some extra thinking in it but that it could be solved.  So they didn't see it as a significant barrier.

***������� PAUL CAIN���������������������������������������������������������������������������������������������������������������������������� RXN MR HARDING


Perhaps the most interesting one of their findings was they did look at employees by tasks and they found that there was a correlation between the number of tasks and productivity rates.  So employees that had the least number of tasks had the least productivity rate.  The employees that had a higher number of tasks had a higher productivity rate and that was consistent at each ADE.  It was very clear that obviously there must be some connection between the fact that somebody is doing a lower number of tasks and their productivity capacity.  Make some sensible conclusion, you know, if someone is more capable they're probably then more capable of doing more tasks.  So to me I think that it provided a very good answer to say, yes, we've heard the concerns but the report from the demonstration showed that they weren't barriers in the way of going forward with implementing the modified supported wage system.


MR HARDING:  No further questions, Commissioner.


VICE PRESIDENT HATCHER:  Thank you very much Mr Cain, you are excused and you're free to go.

<THE WITNESS WITHDREW����������������������������������������������������������� [2.33 PM]


VICE PRESIDENT HATCHER:  Can we call Ms Powell now, Mr Harding?


MR HARDING:  Perhaps before you do so, your Honour, if I could tender one matter because that's the evidence (indistinct) for the AED but where things were left in relation to one of the documents I sought to tender - or I did tender at the beginning of proceedings, was the Productivity Wage Assessment Study by Adrian Pitt(?) at 2017.  Mr (indistinct) wanted some time to get some instructions and I'm told by him that there is no objection to its tender and I hereby tender it.


VICE PRESIDENT HATCHER:  What was that document called?


MR HARDING:  It's called Productivity Wage Assessment Study Report March/April 2015 prepared by Mr Adrian Pitt, supported wage assessor.



MR HARDING:  Thank you, your Honour.


MR STROPPIANA:  Your Honour, if I could just deal with one matter very quickly.  Just the order of witnesses for next Tuesday 13 February.  I understand there is no objection to this, the two witnesses for Endeavour, Mr Scott Reed and Andrew Donne, the request is that they be promoted in the batting order, so to speak, maybe the first two witnesses on that Tuesday.

***������� PAUL CAIN���������������������������������������������������������������������������������������������������������������������������� RXN MR HARDING


VICE PRESIDENT HATCHER:  We will accommodate whatever the parties agree to.  So if there's a change can the parties provide an amended witnesses order please.




VICE PRESIDENT HATCHER:  Right, Mr Ward, Ms Powell.


MR WARD:  Your Honours and Commissioner, we are just grabbing Ms Powell from outside and I will call her in due course.


THE ASSOCIATE:  State your full name and address.


MS POWELL:  Sally Jane Powell, (address supplied).

<SALLY JANE POWELL, SWORN��������������������������������������������������� [2.36 PM]

EXAMINATION-IN-CHIEF BY MR WARD������������������������������������ [2.36 PM]


MR WARD:  Is your name Sally Powell?‑‑‑Yes.


Your address is (address supplied)?‑‑‑Yes


Have you completed a statement dated 21 November 2017?‑‑‑I have.


Are there any corrections you wish to make to that statement?‑‑‑No.


Do you wish to rely on that statement in relation to your evidence in these proceedings?‑‑‑I do.


Subject to objections I seek to tender that statement.




***������� SALLY JANE POWELL������������������������������������������������������������������������������������������������������������������ XN MR WARD

CROSS-EXAMINATION BY MR HARDING���������������������������������� [2.37 PM]


MR HARDING:  Mr Powell, you are the CEO of Bedford, aren't you?‑‑‑I am not.  I concluded that position on 13 December 2017.


What are you now?‑‑‑I am between jobs.  I start a new job on 1 April.


Congratulations?‑‑‑I'm gardening.


When you were CEO, you've given some evidence that Bedford Industries are the second largest provider of supported employment for people with disabilities, is that right?‑‑‑The Bedford Group, as it is now known, is the second largest supported employment facility under the Department of Social Services contract.


The Bedford Group operates a number of supported employment services?‑‑‑It does.


Perhaps if I can clarify.  Are you making this statement in your personal capacity or are you representing Bedford Group in terms of the evidence you are giving?‑‑‑The statement before you is a personal statement, it is not representative of Bedford.


Is the purpose of this statement to explain to the Commission what you say are the benefits of ADE employment?‑‑‑The purpose of the statement is to provide some broad context as to the role of supported employment in society from a social and economic perspective.  My experience is broad and includes global perspectives which may be useful for the Commission in this case.


The Bedford Group you say - the directors say that the Bedford Group operates a number of supported employment services, is that the way to put it?‑‑‑Yes, we operate a range of businesses under a supported employment contract with the Department of Social Services that has been in operation for 81 years.


Do those businesses operate autonomously?‑‑‑They do.


There would be a manager of each of those businesses?‑‑‑Yes.


***������� SALLY JANE POWELL������������������������������������������������������������������������������������������������������������������ XN MR WARD

***������� SALLY JANE POWELL���������������������������������������������������������������������������������������������������������� XXN MR HARDING

Those managers would have responsibility for wage assessments?‑‑‑We have a disability structure and a commercial structure in place at Bedford, at the time that I was CE.  What is happening there today I cannot comment on.


Who was responsible when you were chief executive for wage assessments in those enterprises?‑‑‑Our wage assessment tool was quite explicit in terms of who could conduct a wage assessment.  There needed to be two parties, one of which had a minimum of certificate IV in workplace assessment and training and had to have a certificate III in disability qualification.  That was held in conjunction with local production expertise.


So that was done at the enterprise by those qualified in the enterprise to conduct those assessments?‑‑‑The individuals that conducted wage assessments worked across a range of the business units.  They were trained explicitly in the role of wage assessments and then there was reliability and validity testing done on those assessments by an independent person.


Those persons were employees of Bedford?‑‑‑Correct.


And the chief executive in your role didn't have involvement in those assessments, did they?‑‑‑No.


Are you trained to conduct them?‑‑‑Am I personally?


Yes?‑‑‑No, I am not.


In paragraph 17 of your statement you make some comments about the numbers of persons who were employed in disability enterprise across Australia and then you suggest that the Fair Work Commission when altering the Supported Employment Services Award, if that is what it does, must improve conditions and increase the opportunity for people with disability to gain employment.  You are aware that that is what you have said in paragraph 17, does that ring a bell?‑‑‑That is correct.

***������� SALLY JANE POWELL���������������������������������������������������������������������������������������������������������� XXN MR HARDING


So what you are saying to the Commission is that, at least from your perspective, you are agnostic as to which of the tools is utilised by the Commission as long as they improve conditions?‑‑‑The purpose of that statement is that as Australia is a signatory to the UN convention of rights of people with a disability that it is, in my opinion, an important consideration to ensure that people with a disability have the best opportunity to actively participate in the workforce.  So we would be seeking through any decision that would be made through this process to give more opportunity not less.


VICE PRESIDENT HATCHER:  What do you mean by improved conditions?‑‑‑Improved conditions is a broad statement, yes.  It refers to wages, it refers to flexibility, it refers to career pathways, it refers to access to employment, that there are not unnecessary barriers to employment.  So we are looking, in this country, to employ as many people with a disability as possible and so we would be seeking to have a public policy environment that affords opportunity not reduces it, or makes it more difficult for the most vulnerable people in our society to enter work.


MR HARDING:  That would include work in open employment as well as ADE employment, wouldn't it?‑‑‑Absolutely, open employment and Australian Disability Enterprises as they're known in the Australian context, they're not black and white.  There's not just open employment and supported employment, there's a spectrum of opportunities that people with a disability can choose as to what is going to be the best pathway for them at any given point in time that will allow them not only to enter the workforce but most importantly to be able to sustain a job over a long period of time.  That is where the more choice that we have and the more opportunity that people have the better our society will be.


Now it's the case isn't it that Bedford has consented to the removal of the Bedford Employee Wage Assessment Tool as it currently exists in the award?‑‑‑That is correct.


VICE PRESIDENT HATCHER:  So I expect it's still using that at least when you left your position?‑‑‑Yes.  There is an enterprise agreement in place.


So assuming there was no other change to the tools in the award what do you anticipate that Bedford would do once that tool was removed?‑‑‑I can't comment on what the board of Bedford will do now that I have left the organisation.  They obviously have a range of opportunities that they can consider and in due course will make an informed decision on what that will look like.  There is an active enterprise agreement in place that embeds the tool and that will maintain until it is either replaced or succeeded by a new enterprise agreement or it is closed.  The board at that time will make some decisions around what that looks like, subject to obviously whatever decision the Commission makes.


MR HARDING:  That's a federal enterprise agreement, yes?‑‑‑Yes.


And so they have the benefit of the Bedford tool regardless of its absence from the award until the enterprise agreement ceases?‑‑‑Subject to it not paying less than the award rate.

***������� SALLY JANE POWELL���������������������������������������������������������������������������������������������������������� XXN MR HARDING


Yes, obviously, and that is where we come back to your statement concerning improvements and conditions once the enterprise agreement concludes.  At least from your perspective the criterion as to which tool should be utilised is the one that best achieves an improvement in conditions for those workers with disabilities in ADEs and in open employment?‑‑‑Overall, yes.


Paragraph 12 you mention - you speak about people with disability, with intellectual disability, autism and profound complex disability and the barriers they face to obtaining employment and compare that to their ability to maintain traditional workplace environment and work in traditional workplace environments.  Now, you are not there referring, are you, to open employment?‑‑‑Can you repeat that question?


Have a look at paragraph 12 of your statement?‑‑‑Yes.


Firstly, it refers to people with disability in particular those with intellectual disability, autism or profound complex disability, do you see that?  And you talk about barriers they face?‑‑‑Mm.


And you say, in the second sentence, "This is largely due to the person's impaired capacity to meet productive output expectations and work effectively in traditional workplace environments".  You are there not referring to open employment are you?‑‑‑That statement is referring to any workplace where a traditional, what we would consider a traditional workplace environment would be.  There are some supported employment facilities that operate in essentially a mainstream employment environment and there are some open employment services that do not.  So it's not as clean as either yes or no, but we were looking at essentially the standard business practices that you would expect in a mainstream, if you like, or traditional workplace environment where there is a reasonable expectation on the individual that they are capable of doing the job with minimum supervision, that they can work autonomously, that they are self-directed, that they have the capacity to prioritise, that they are deemed a capable of working in a safe environment, they are able to meet productivity requirements without direction or unnecessary accommodations and that they can produce significant work to justify their salary.

***������� SALLY JANE POWELL���������������������������������������������������������������������������������������������������������� XXN MR HARDING


That seems to be referring to a person who is not affected by disability?‑‑‑Not necessarily.  There are people that have physical disabilities that may be able to work completely unsupported in open employment or a mainstream traditional workplace.  Equally there might be an example of someone who has a visual impairment, who is responsible - I am drawing from an example in the US - where we see that the people that do the document destruction in Washington are all blind because they are the best people to do the job and they can work completely effectively.  They are the best qualified people for that job and that can't be disputed.  So it's very much on the individual workplace and it's looking at what that individual can do.  So it's not that clean I am afraid.


In that situation they don't also learn the employer's secrets either?‑‑‑That would be the reason they are the best person for the job.  So unless that document is in braille they are absolute experts in that role.


Experts in maintaining confidentiality?‑‑‑Absolutely, kind of important.


Indeed, particularly when you are trying to destroy the documents.  But in terms of the traditional workplace environment you are referring to, you would accept wouldn't you that in open employment it is hoped that jobs can be customised in order to meeting the particular circumstances of the person with an intellectual disability who may require that?‑‑‑There are varying degrees of which business, mainstream business, traditional business, particularly some of the larger employers in this country that tend to be listed and their predominant purpose is shareholder value increasing, where they are prepared to make those accommodations and provide those additional supports or to which it becomes a distraction that is unwanted.


Thank you.  No further questions.


VICE PRESIDENT HATCHER:  Any re-examination?

RE-EXAMINATION BY MR WARD������������������������������������������������� [2.49 PM]


MR WARD:  Just one thing, Ms Powell, paragraphs 19 and 20 of your statement you talk about the UK experience.  Can you just expand a bit about what has happened there and the results?‑‑‑Certainly.  I've been involved with Workability International for some years which Workability is the international peak body for people with a disability and their rights to work.  So as part of my role as a director is to be aware of public policy in various international settings and then to be able to assess the effectiveness of that, of getting people into work and maintaining that employment.  In the UK they have closed their, what they call, sheltered employment, they use a different terminology than the Australian context.  It started in 2008/2007 when the first wave of closures came about.

***������� SALLY JANE POWELL��������������������������������������������������������������������������������������������������������������� RXN MR WARD


VICE PRESIDENT HATCHER:  Was that the result of a government policy decision?‑‑‑Government policy, yes, at that time.  It was under the term of viability closures at that stage but while that was going on there was a broader discussion happening at government.  In 2010 the government received a report recommending closures to all sheltered employers in the UK.  That report was flawed on a number of fronts; it was anchored in the US context and the US has a significantly different public policy framework than the UK does.  For example, in the US they have a quota system where you have to employ a certain percentage of people with a disability or you pay additional taxes.  They also have a large government procurement program, and I'm talking billions and billions and billions of dollars, where government contracts have to go to organisations that employ people with a disability, it is mandated.  So all of the military contracts, all of the telecommunication contracts, all of the post is handled by people with disability.  They pay under a minimum wage but the minimum is half that of the UK or in the Australian context.


The list goes on and it's quite a different world.  They call open employment, or they call it supported employment, but it's what we would call open employment, it's no different than what looks like a supported employment facility in Australia.  It has hundreds of people with a disability all working together under one roof and yet it is considered open employment.


So at that time in 2010 government heard the report, failed to pick up on the nuances, they were making a very narrow decision on supported employment without considering the critical facts that underpin the success of that program in the US.  What then happened in 2012 is the government agreed to close all services and by 2013 none existed.  The outcomes of that was catastrophic.  I don't use that term lightly, I was in the UK in 2009 and 10 when the first wave of closures went, worked closely with a number of services, the Shaw Trust, Remploy and Rehab, the three largest employers in the UK including Ireland and some parts of mainland Europe.


What happened was that people with disability fell through the crack.  There was a number of people, about a quarter of people were able to transition into open employment, of that a certain number were able to sustain employment.  But the vast majority of people were lost, they were either reclassified as retired, they went into social programs, they went into education and as a result they dropped out of the unemployment statistics.  What it did was it masked a significant problem for society in the UK.  It also created a whole generation of parents that then had to quit their jobs because somebody had to stay home and care and the roll on effect in terms of health, justice system, further opportunities for people with a disability was significantly reduced.


The country is still grappling with turning that around.  It is making some progress and they have had to invest enormous amounts of money and time and expertise in building the infrastructure that wasn't there.  So when we look at a supported employment environment or sheltered, as they call it in the UK, it is very dangerous to look at it in isolation with what else is in place.  Because the people that could least afford to get hurt got hurt in that process.

***������� SALLY JANE POWELL��������������������������������������������������������������������������������������������������������������� RXN MR WARD


DEPUTY PRESIDENT BOOTH:  I just wanted to continue that line of questioning for a moment.  Do you have a view about what is now called social enterprises, it might be considered to be a point on the continuum, somewhere between employment and the ADE model?‑‑‑Yes, social enterprises are incredibly useful and they have different definitions depending on which country you look at but essentially it is more of an even balance of people with a disability and people without disability, 50/50 ratio or to that effect.  They tend to be much smaller organisations, they're very effective.  I would encourage any form of choice for people with a disability that affords more opportunity for work as a good initiative.





MR HARDING:  Yes, a matter arising, your Honour.  Just in relation to the UK experience.  That was a policy made by government to close those enterprises or those workshops, sheltered workshops I think is the term?‑‑‑Mm.


They did that and I think your evidence was that the building - the infrastructure to replace those wasn't developed?‑‑‑It was insufficient for the number of people that came onto the market.  So Remploy as an employer, as an example, in the 80s had more than 40,000 employed in supported employment.  By 2013 when they did the final closure there was only 2000 left of which less than 500 people got a job.


So in that situation, frank closure at a particular date and people were cast adrift?‑‑‑It happened over an 18 month period.


Thank you.


VICE PRESIDENT HATCHER:  Any further questions arising out of that?


MR WARD:  No, thank you.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Ms Powell you are excused and free to go.

<THE WITNESS WITHDREW����������������������������������������������������������� [2.55 PM]

***������� SALLY JANE POWELL�������������������������������������������������������������������������������������������������������� FXXN MR HARDING


VICE PRESIDENT HATCHER:  That's we have to deal with today?


MR WARD:  Yes, your Honour.


VICE PRESIDENT HATCHER:  All right.  We will now adjourn and we will see you again next week in Sydney.

ADJOURNED UNTIL MONDAY, 12 FEBRUARY 2018 ��������������� [2.56 PM]



LEIGH SVENDSEN, AFFIRMED................................................................... PN1954

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