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Fair Work Act 2009�������������������������������������� 1055630




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




10.07 AM, MONDAY, 12 FEBRUARY 2018


Continued from 9/02/2018



VICE PRESIDENT HATCHER:  Are there any issues we need to deal with before we call the first witness?


MR ZEVARI:  Only one, your Honour, which is that we'd seek an order for the witnesses out of court, please.


VICE PRESIDENT HATCHER:  Is there any opposition to that order?  Are there any witnesses that need to leave the court?


MR ZEVARI:  Yes, Mr Braddy, I believe.


VICE PRESIDENT HATCHER:  Mr Zevari, are you calling the next witness which is Ms Constable?


MR ZEVARI:  Yes.  Thank you, your Honour.


VICE PRESIDENT HATCHER:  We'll just administer the affirmation to her.  So, Ms Constable, are you on the phone?  Ms Constable, can you hear us?


MS CONSTABLE:  Yes, I can.


VICE PRESIDENT HATCHER:  The court officer is just going to administer the affirmation to you and then we'll have you answer some questions by the advocates for the parties.


THE ASSOCIATE:  Please state your full name and address.


MS CONSTABLE:  My name is Anne Lynette Constable, 20 Christian Street, Maryborough, Victoria.

<ANNE LYNETTE CONSTABLE, AFFIRMED��������������������������� [10.09 AM]

EXAMINATION-IN-CHIEF BY MR ZEVARI������������������������������� [10.09 AM]



***������� ANNE LYNETTE CONSTABLE���������������������������������������������������������������������������������������������������� XN MR ZEVARI


MR ZEVARI:  Thank you, your Honour.  Ms Constable, your name is Anne Lynette Constable?‑‑‑Correct.


Your address is 20 Christian Street, Maryborough, Victoria?‑‑‑My work address is, yes.


Yes, thank you.  Have you completed a statement in these proceedings dated 21 September 2017 which runs to 60 paragraphs?  Ms Constable?‑‑‑I did that in collaboration with the manager from ASTERIA Business Services.


Thank you.  Have you also completed a statement dated 14 December 2017 which runs to six paragraphs and includes one annexure being the Supported Wage Systems Assessment Guidelines?‑‑‑Yes, correct.


Are those statements in front of you, Ms Constable?‑‑‑They are.


Are there any corrections you wish to make to either of those statements?‑‑‑No, I don't believe so.


Are those statements true and correct to the best of your knowledge and belief?‑‑‑To the best of my knowledge and belief, yes.


Thank you.  I seek to tender those statements.


VICE PRESIDENT HATCHER:  There's no objections?




VICE PRESIDENT HATCHER:  The statement of Anne Lynette Constable dated 21 September 2017 will be marked exhibit 20.



VICE PRESIDENT HATCHER:  The further statement of Anne Lynette Constable dated 14 December 2017 will be marked exhibit 21.


***������� ANNE LYNETTE CONSTABLE���������������������������������������������������������������������������������������������������� XN MR ZEVARI



CROSS-EXAMINATION BY MR HARDING�������������������������������� [10.11 AM]


MR HARDING:  Thank you, your Honour.  Ms Constable, my name is Malcolm Harding.  I appear for the AED Legal Centre.  Are you able to hear me all right?  Ms Constable?


VICE PRESIDENT HATCHER:  Just hold on.  So, Ms Constable, are you there?‑‑‑Yes, I am.


Can you hear, Mr Harding?‑‑‑No.  I can hear you.


Just hold on a sec, we've got some technical problem here.


MR HARDING:  Ms Constable, Malcolm Harding, I appear for AED Legal Centre.  Can you hear me?‑‑‑Yes, I can.


Excellent news.  We had a dud mic?‑‑‑Okay.


Ms Constable, you say in the statement, on paragraph 1, that you're the CEO of ASTERIA?‑‑‑Correct.


And it's correct, isn't it, that ASTERIA provides a range of services in the disability field?‑‑‑Yes.


Including respite and training as well as business services?‑‑‑Yes.  Not training specifically.  We're not an RTO.


What do you do in respect of training?‑‑‑We train clients, participants by way ‑ ‑ ‑


For open employment or for work in your ADEs?‑‑‑Work in our ADEs.


Thank you.  You said just in a minute ago that you prepared at least the first statement of yours in collaboration with the manager of ASTERIA Business Services?‑‑‑Correct.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


What's that person's name?‑‑‑Linda Gerring.


Linda Steering?‑‑‑Gerring.


You've given some evidence for example in paragraph 23 of your statement describing the experience on the day of a worker identified as SM?‑‑‑Correct.


Did you get that information from your manager?‑‑‑The manager certainly did that.  I'm aware of all of these clients.  I know them, and the manager certainly did do that.


That would be true of the other examples that are contained in your statement?‑‑‑Yes.


It's correct, isn't it, that ASTERIA does not utilise the SWS as the basis for wage assessment?‑‑‑Correct.  We use Greenacres.


You use Greenacres?‑‑‑Yes, we do.


You're not a qualified SWS assessor, are you?‑‑‑No, I'm not a � no.


Are you involved in any way in wage assessment in ASTERIA's business services?‑‑‑Not directly.  My manager is.


Who conducts the assessments, Ms Constable?‑‑‑Linda Gerring, the manager of ASTERIA Business Services.


Okay?‑‑‑And staff.


And staff.  Who are you referring to when you say "and staff"?‑‑‑Supervisors would certainly assist.


So it's correct to say, isn't it, that ASTERIA has no experience in utilising the SWS in its ADEs?‑‑‑That would be correct.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


If I can take you to paragraph 51 of your statement, please, Ms Constable.  This is the first statement, page 15.  Just tell me when you've got there?‑‑‑Yes.


In paragraph 51 you state that:


The SWS is not suitable to measure the competencies of our complex supported employees.




Then you've provided a second statement where you reference the Australian Government Disability Employment Services Supported Wage System Assessment Guidelines.  Very long title.  Is the basis for what you say in 51 your extract from the guidelines?‑‑‑Yes.


Thank you.  Ms Constable, ASTERIA publishes an annual report, doesn't it?‑‑‑It does.


The 2016/17 annual report, and I'm sorry I can't provide it to you because you're on the telephone, states on page 2 of 4 on the copy that I have, and I'll just read it to you.  So:


ASTERIA provides meaningful supported employment for people with a disability while operating financially viable and sustainable business services.


Do you recognise that?‑‑‑I don't have it in front of me, but I would accept that.


So currently ASTERIA is financial viable?‑‑‑Yes, we are.


You're concerned that the SWS might not make you financially viable?‑‑‑It possibly would impact our service delivery.


Possibly but you don't know one way or another?‑‑‑I'm not certain.


No.  All right?‑‑‑That was as of then, sorry.


I'm sorry?‑‑‑That was as it stood then when that was written.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


Has something changed?‑‑‑Not really.  The end ‑ ‑ ‑


No?‑‑‑No.  No.


In paragraph 23 you give an example of a person identified as SM, and this person has an intellectual disability and epilepsy; that's correct?‑‑‑Yes.


This is a diary you say of one day of work of this individual?‑‑‑Yes.


That's the approach you've adopted in respect of the other examples that you offer in your statement?‑‑‑Yes, a very high � a very complex (indistinct).


Yes.  That's my question.  So this person is very high need, isn't � is it a he or a she?‑‑‑It's a he.


He has got very high needs, hasn't he?‑‑‑He has.


You would have a range of people with disabilities you employ; that's correct, isn't it?‑‑‑Correct, yes.


They would have a variety � their disabilities would affect them in different ways?‑‑‑Correct.


Some have greater work capacity than others?‑‑‑That's correct.


And SM would have low work capacity, wouldn't he?‑‑‑That's correct.


That's amplified by the number of times that SM goes off task?‑‑‑Yes.


In your example?‑‑‑Yes.


And makes mistakes?‑‑‑Yes.


And requires redirection?‑‑‑Yes.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


The short point, isn't it the case, Ms Constable, is that SM would produce very little, given his disability?‑‑‑Yes, that's correct.


Yes.  You offer up Mr SM as a typical supported employee, but he's not that typical, is he?‑‑‑Well, sorry, I'm just thinking about this.  Typical?  We have several clients � well, participants that would be at that level.


How many employees do you have who are supported employees?‑‑‑It's dropped now since the NDIS, but 56, I think from my latest figures on Thursday/Friday.


So 56 and you say you have several in the same category as SM?‑‑‑Yes.


Would those persons also be the other example who is BH?‑‑‑Yes.


And AP; is that right, Ms Constable?‑‑‑Yes, correct.


So these three people are in that category of several who have significant disabilities?‑‑‑Correct.


So they're typical of that sub-group, aren't they?‑‑‑Yes.  Yes.


Thank you.  Can I ask, as I understand it, and correct if I'm wrong, Ms Constable, the government provides a level to assist in the provision of support to ‑ ‑ ‑?‑‑‑They do.


Yes.  That support ranges, doesn't it, from what's called DMI1 to DMI4?‑‑‑That's correct.


DMI1, being the lowest level and DMI4 being the highest level; is that correct?‑‑‑That's correct.


In relation to that is it the case that the � and I'm only asking you to speak for your own business services here, that your business services make an assessment of the individual's requirements and then make an application to the Department?‑‑‑Yes.


So it's assessment by the ADE itself approved by the Department?‑‑‑Approved by the Department.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


It's correct to say, isn't it, that the DMI levels take into account the behavioural circumstances or manifestations of the person's disability?‑‑‑Yes, correct.


Their cognitive deficits?‑‑‑Yes.


Their needs for personal care and communication?‑‑‑Yes.


And the workplace environment in which they're working?‑‑‑Yes.  So we have a service average because that was done prior to the - pre-NDSI, so we have an average, a service average.


What's the service average?‑‑‑I'm not sure off the top of my head, sorry.


That's all right.  Have all your employees shifted to the NDIS?‑‑‑No.


So it's still in transition?‑‑‑Still in transition.  I think about 80 per cent.


Have moved to the NDIS?‑‑‑The NDIS.


The way in which the NDIS works is that there's an individual plan prepared for the individual worker?‑‑‑Correct.


In relation to that plan there'll be an assessment of their support needs at work?‑‑‑Not actually specified in the plan, no.


To what extent does the plan take into account their support needs?‑‑‑The plan is determined by the local area coordinators.


But the plan takes into account, doesn't it, the works � well, maybe the circumstances of the individual?‑‑‑Well, yes.


Yes.  The intention at least, isn't it, is that they'll assess the individual in terms of the kinds of life that they want to lead including work?‑‑‑Yes.


Services will be tailored to accommodate those needs to the extent that the NDIS permits?‑‑‑Yes.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


Thank you?‑‑‑We no longer � sorry.


I'm sorry.  I was just going to ask you a question?‑‑‑We no longer take the DMI assessments.


You don't do them any more?‑‑‑No.


That's because so many of your clients have moved � your employees have moved over to the NDIS?‑‑‑They've transitioned across, correct.


You say in paragraph 48 of your first statement that the work value classification tool, and you refer to that in paragraph 48, and you say that it is the best option for the future of supported employment; yes?‑‑‑Yes.


But you have not yet trialled that, have you?‑‑‑We haven't.


You haven't costed it either, have you?‑‑‑No.


So you have no specific evidence that you can offer the Commission that supports the proposition that it's the best option for the future of supported employment, do you?‑‑‑No.


Do you know who designed the tool, Ms Constable?‑‑‑Which?  The supported wage tool?


No, no, the wage value classification tool you refer to in 48?‑‑‑Chris � I can't think of his other name off the top of my head.


Mr Christodoulou?‑‑‑Correct.


You've had conversations with him about the design, have you?‑‑‑I have not.  Met him at the conference � Canberra summit.


So you're ‑ ‑ ‑

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Sorry, what did you say, Ms Constable?‑‑‑I met him at the Canberra summit.


MR HARDING:  Okay.  So your assessment of the tool is based on your reading of the document itself; is that right?‑‑‑Yes.


Yes.  Thank you?‑‑‑There was evidence presented at the summit, and then emailed out to organisations.


I don't suppose you have the tool in front of you, do you?‑‑‑I don't.


No, okay.  No further questions?‑‑‑It replicates the Greenacres assessments.


It replicates Greenacres.  Is that the basis for your support, is it?‑‑‑No.  No


Okay?‑‑‑But it's not just productivity alone.  I personally believe it's a fair way to assess employees.


Thank you, Ms Constable.


VICE PRESIDENT HATCHER:  Ms Constable, it's Vice President Hatcher here.  I just want to ask you one question.  You said that the number of your clients had reduced since the introduction of the NDIS: is that right?‑‑‑Yes.


Why is that?‑‑‑I'm not sure why.


That is, is there any cause and effect there between NDIS and the reduction or did it just happen?‑‑‑It's harder for them to come into work.


I'm sorry, can you say that again?‑‑‑It's more difficult for them to attend.


Why is that?‑‑‑Sorry, I'm a bit confused at the moment.


I'm just trying to work out whether there was something about the NDIS which caused your number of clients to reduce, or was it just a coincidence?‑‑‑It wasn't ever DSP.

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING


I'm sorry, I can't hear you.  What did you just say?‑‑‑I'm dry in the throat, I'm sorry.


Okay.  Just tell me when you're ready?‑‑‑They can't � before clients were able � look, if I think about it before the clients would be able to just come up to ASTERIA Business Services and we would be able to speak with them and then we could go through the process with them.  Now it's by � it's totally changed with the introduction of the NDIS, and they have a plan.  So they have an NDIS plan and some of those plans change; some don't necessarily have support.  I guess they're not � they need to have a plan that states exactly what they need to do, and the plans are not all that prescriptive.


Thank you.  Anything arising out of that, Mr Harding?




VICE PRESIDENT HATCHER:  Any re-examination, Mr Zevari?


MR ZEVARI:  No, your Honour.


VICE PRESIDENT HATCHER:  All right.  Thank you, Ms Constable, for giving your evidence. You're now excused and free to go which means you can simply hang up the phone?‑‑‑Thank you.


Thank you.

<THE WITNESS WITHDREW��������������������������������������������������������� [10.31 AM]


VICE PRESIDENT HATCHER:  Mr Zevari, who is the next witness?


MR ZEVARI:  Mr Burgess, Steve Burgess, your Honour.


THE ASSOCIATE:  Please state your full name and address.


MR BURGESS:  Stephen Charles Burgess (address supplied).

<STEPHEN CHARLES BURGESS, SWORN��������������������������������� [10.32 AM]

***������� ANNE LYNETTE CONSTABLE��������������������������������������������������������������������������������������������� XXN MR HARDING

EXAMINATION-IN-CHIEF BY MR ZEVARI������������������������������� [10.33 AM]




MR ZEVARI:  Is your name Stephen Charles Burgess?‑‑‑Yes.


Is your address (address supplied)?‑‑‑Yes.


Have you completed statements in these proceedings dated 21 September, 2017 and 14 December, 2017?‑‑‑Yes.


Just to confirm the first of those statements dated 21 September, 2017 runs to 111 paragraphs?‑‑‑That's correct.  From memory.  Unfortunately I don't have a copy with me, so ‑ ‑ ‑


I can hand up some copies of your statements.  Are the statements in front of you the statements that you completed, Mr Burgess?‑‑‑Yes, they are.


Are there any corrections you wish to make to either of those statements?‑‑‑No.


Are those statements true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.


I seek to tender those statements.


VICE PRESIDENT HATCHER:  The statement of Stephen Charles Burgess dated 21 September, 2017 will be marked exhibit 22.



VICE PRESIDENT HATCHER:  The further statement of Stephen Charles Burgess dated 14 December, 2017 will be marked exhibit 23.




***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������������ XN MR ZEVARI

CROSS-EXAMINATION BY MR HARDING�������������������������������� [10.34 AM]


MR HARDING:  Yes.  Thank you, your Honour.


VICE PRESIDENT HATCHER:  Do you have a copy of your statements, Mr Burgess, do you?‑‑‑Yes, I have now.


Yes, all right.


MR HARDING:  Mr Burgess, in your first statement you deal with � you explain what the Flagstaff Group does, and the range of business services that it provides.  It's correct to say that at least at the time of this statement there were six of those; is that right?‑‑‑That's correct.


Although I think one of them has closed down, hasn't it?  The caf�?‑‑‑Yes.  That's correct.


It closed on 20 December, 2017?‑‑‑Caf� Vizione closed.  That's right.


That was just because it just wasn't making money?‑‑‑Essentially, yes.


Yes, okay.  In those businesses � are they discrete ADEs in themselves?‑‑‑Yes, they are.


They are.  So they would have a manager?‑‑‑Yes.


And supervisors who work in each of the ADEs?‑‑‑That's correct.


The wage assessments are done, are they, by the supervisors?‑‑‑The wage assessments are not done by the managers or the supervisors.  There's a dedicated support team that calculates those in consultation with the supervisors and managers.


What tool does Flagstaff use?‑‑‑It's termed the Flagstaff competency based wage system.  It's essentially the Greenacres tool but our wage percentage table is slightly higher than the Greenacres tool.  That's why it's referred to as the Flagstaff tool.  It's really the only deviation.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


So this dedicated team do the assessments?  You don't do them?‑‑‑Personally?




You're not a qualified SWS assessor, are you?‑‑‑No, I'm not.


Has it been the case Flagstaff has always used its own tool, hasn't it?‑‑‑I started in 2005 and that's the tool we've used since then.


Yes.  So you have no experience of utilising the SWS yourselves?‑‑‑No.


No.  I'll ask you a question in a minute about your tool, but just for the purposes of clarity, in paragraph 10 of your first statement you speak about 155 funded and eight unfunded supported employees?‑‑‑Yes.


What's an unfunded supported employee?‑‑‑Beg your pardon?


What's an unfunded supported employee?‑‑‑That was under the � before the NDIS ‑ ‑ ‑


Yes?‑‑‑ ‑ ‑ ‑under the DSS funding model we were capped on how many supported employees we could hire.  We felt that restricted people with disabilities ‑ ‑ ‑


Yes?‑‑‑ ‑ ‑ ‑who wanted to work with us.


Yes?‑‑‑So where we could we would find opportunities for those people to work in our organisation knowing that we wouldn't get any support funding from the government.


So in those circumstances did the characteristics, I mean, the disability related characteristics of the unfunded employees differ from those who were funded?‑‑‑There's no real characteristic.  We will try and give anybody regardless of their disability an opportunity.  We'll try and find a task for them.


So you essentially subsidised those workers?‑‑‑Yes.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


It's the case, isn't it, that � and I'll talk to you about the NDIS in a moment, but under the old system there were levels of funding that the government provided?‑‑‑That's correct.


DMI levels, I think they're called?‑‑‑Yes.


That range from 1 to 4?‑‑‑Yes.


The lowest level being 1; the highest level being 4?‑‑‑Yes.


The DMI levels took account of the cognitive effects of a person's disability?‑‑‑The DMI levels was a range of areas.


Yes?‑‑‑We didn't calculate those.  We just put the answers into FOFMS which is the software database, and they calculated what the � so we don't submit this is a level 2 or level 3 person.


Yes?‑‑‑We just answer the questions and they advise us this is what the level is going to be.


I see.  It was done online, was it?‑‑‑Yes.


So you would identify � there would be a range of questions that the Department provided on the website?‑‑‑Yes.


You would answer those questions?‑‑‑Yes.


And there would be a calculation done by the Department which led to a particular level of funding?‑‑‑A DMI level, that's right.


A DMI level.  But it's right to say that the assessment of the individual and their requirements was done by Flagstaff?‑‑‑Yes.


By the same team that did the wage assessments?‑‑‑Yes.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


I think you've said there's been a transition to the NDIS and how many of your employees are now covered by the NDIS?‑‑‑I think it's about 68 per cent of our employees are now covered.


Is the difference with NDIS coverage that the individual plan prepared for the individual worker is done by the Department rather than any involvement by Flagstaff?‑‑‑The NDIS goals plan?


Yes?‑‑‑Yes, that's not done by Flagstaff, no.


Yes.  So in the past under the DMI levels there was some assessment made of the individual that was put into a website, but with the NDIS that's done by the NDIS itself?‑‑‑Based on historical data provided by DSS.


What do you mean by that?‑‑‑So Steve Burgess might get a job.  They'll already know that Steve Burgess is a level 3, and Stephen Burgess will get level 3.  Generally Steve Burgess will get level 3.


So there's almost a direct correlation, is there, in your experience?‑‑‑There's a very close correlation.


Can I show you a document, please?  I'm showing the witness a certified agreement called the Flagstaff Certified Agreement 2004.


VICE PRESIDENT HATCHER:  Is that in the materials somewhere else?


MR HARDING:  No, it's not.  I'm going to have to hand it up, your Honour.  You'll see from the front page that this is an industrial agreement.  It applies to Flagstaff Group and its employees that came into force on 10 June 2005.  Are you familiar with this agreement?‑‑‑Yes.


Is it still in force?‑‑‑Yes.


On page 19 � perhaps if I start on page 16 this contains a part 4, wages and related matters, and there's in 19.1:


Employees are graded by Flagstaff in one of the grades in schedule A having regard to the employee's skills, experience and qualifications.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


It's correct to say this agreement applies to both your disabled and supervisory workforce, isn't it?‑‑‑Yes.


Then we get, in clause 19.3, to the Flagstaff Group competency wages system.  So that's the system that you've just been describing earlier on?‑‑‑Yes.


The situation is, isn't it, that there is a grade, and this is described in 19.3.2, which ranges from 1 through to � or A through to E, with the top being 45 per cent of the minimum wage; is that fair?  The minimum wage under the modern award?‑‑‑So there's grades 1 and 2 with the modules A to E.


Yes?‑‑‑That's right, yes, A to E.


Yes.  Yes, okay, grades 1 and 2.  So, yes, that's right.  So there's a grade of assistance in the agreement itself?‑‑‑Yes.


And grade 1 is a training grade?‑‑‑Yes.


And grade 2 is the grade where most of your supported employees fall?‑‑‑At this time it's all supported employees fall would be correct, yes.


So all of your supported employees are in grade 2?‑‑‑Yes.


So the 45 per cent refers to 45 per cent of the grade 2 rate of pay at level E?‑‑‑Forty-five per cent of grade 2 level E, yes.


Yes?‑‑‑Forty-five per cent of grade 2, that's correct.


That's right.  Then in 19.3.5 the way I read this is that you determine which grade a person falls in by applying the supported wages system?‑‑‑That's what 19.3.5 says, yes.


That's what it says.  And you're saying you don't?‑‑‑We don't apply the supported wage system at Flagstaff, no.


All those agreements still in force, you say?‑‑‑This agreement is in force, that's correct.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


How do you determine, in accordance with this agreement, where people fall, Mr Burgess?‑‑‑My understanding of that would be the assessment of the 45 per cent capacity.  If you go back to 19.3.4 there's the other percentage capacities.  But my understanding of that agreement would be assessment of capacity above 45 per cent.


So you say that the SWS applies above 45 per cent?‑‑‑My understanding of the agreement and our tool is if someone goes above the 45 per cent there's no option but to - I guess open employment, full wages - but the supported wage system would apply.


Notwithstanding the fact that clause 19.3.5 says:


For the purposes of establishing the percentage of the employee's grade to be paid to the employee under this agreement, the productive capacity of the employee will be assessed in accordance with the SWS.


?‑‑‑I understand your interpretation of 19.4.3.


It's just not the way you do it?‑‑‑Our application is for when the SWS is to be applied, when capacity is to be measured, it's to use the SWS to measure that capacity.


But above 45 per cent there's no argument, you would apply the SWS?‑‑‑If we had roles that would meet that criteria - tasks that would meet that criteria, we would apply the SWS.


What it requires, doesn't it, is an assessment of the employee and how they're performing their work.  And then on the basis of that you determine the rate of pay, don't you?‑‑‑You base the task - you ensure that the task is suitable for grading under the Greenacres wage tool.  So there's a task analysis for the task, and that identifies the grade.  That will identify whether it's 2A, B, C, D or E.


So you use another instrument - I clarify this.  So you use the Greenacres tool as part of your wage assessment process?‑‑‑That's right.  We use the Greenacres tool.  It's called the Flagstaff competency-based wage tool because there is a percentage band of A in the Greenacres tool, ours is higher than that, so there's a deviation from that tool.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


So you use a task analysis to determine which grade a person falls in?‑‑‑A task falls in, that's right.


A task.  So you don't actually assess the individual, you determine the task?‑‑‑That's right.


VICE PRESIDENT HATCHER:  Mr Burgess, the percentages in 19.3.2, are they the ones you use, or are they the Greenacre once?‑‑‑No, they're the ones we use, your Honour.


MR HARDING:  And you accept that 19.3.4 says that:


An employee who is assessed at between 80 to 100 per cent shall be paid 100 per cent of the award rate.


?‑‑‑Sorry, could you ask that - I don't understand what you mean.


Look at 19.3.4?‑‑‑Yes.


The first of it, it tells us the percentage of the rate of pay depending on an assessment of capacity.  That's what that table references, doesn't it?‑‑‑Yes, it follows on from 19.3.3:


Employees with a disability assessed above 45 per cent of grade 2.


Then that follows on from there.


And the assessment is supposed to be done by reference to a person who's not disabled.  That's what 19.3.4 says?‑‑‑That's correct.


And then depending on that assessment, at least in accordance with this agreement, you then allocate a person a percentage of the prescribed grade, which is a percentage of the grade 2 rate, unless they're in grade 1.  Is that right?‑‑‑If we had need to do that, that's how it would apply.


Do you have anyone that you've assessed above 45 per cent?‑‑‑No.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


So you have absolutely no experience of utilising a part of the tool that's in your own agreement?‑‑‑We don't have any tasks at Flagstaff that require anything higher than the parameters of the wage tool.  So if it was above 45 per cent, we don't have those sort of jobs or tasks available.


Regardless of the productive output of an individual?‑‑‑Productive output is part of measurement, but we wouldn't have - it if it was someone that we - if we didn't have the capacity to - the employment, the task available - - -


You just wouldn't employ them?‑‑‑We couldn't employ them.  We would be encouraging them to go to a DES or open employment.  We seldom - I don't recall someone with that level of ability applying for a role at Flagstaff.


You wouldn't employ them if they did?‑‑‑We would employ them if they understood that we would only be able to provide this level of tasks.  Our workplace only has a certain level of tasks.


So even if someone came along who had higher skills, you would have to say, "You have to accept the rate of pay at less than 45 per cent of your grade 2"?‑‑‑They would have the choice of accepting a task that we have available, yes.


You support, don't you, the wage value - I never remember the name of the tool, but it has been proposed by the ABI.  Are you familiar with that?‑‑‑The wage value classification structure?


That's the one, wage value classification tool.  You support that, don't you?  That is, Flagstaff does?‑‑‑To say yes to that wouldn't be entirely accurate.  I support the concept of a wage classification structure because I value the wage classification structure that's available in modern awards now.


Right?‑‑‑I see it as - I personally believe it would be a very good option if that was available within the IR system for people with disabilities.


The wage value classification system, you're talking about - or tool?‑‑‑Yes.  So a staff member gets a grade 4 job, it would be good to have a wage value classification system in the award rather than just an alternative of the supported wage system.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


How does that work with the way in which you structure your enterprise?  I think your evidence was that if you didn't - if someone came along at that skill level they would have to accept a rate of pay lower than that because you would only have tasks at that level?‑‑‑I would envisage that if - certainly it's not my position to make the call, it would be the matter of the board - but I would envisage if the classification structure was made available I would envisage the board would investigate the possibility of enrolling entirely to SESA rather than have an agreement.


But you have no experience of that, do you, of the tool?  You've never - - -?‑‑‑Of the SWS?


The wage value classification tool proposed by ABI?‑‑‑Other than the experience of seeing how it's applied in mainstream employment, no, not in the sector.


No, I think we're talking at cross purposes.  I wasn't referring to the SWS, I was referring to the wage classification tool that is being proposed by ABI?‑‑‑That's right.  I see how it gets used in mainstream employment.


You think that the toll proposed by ABI is used in mainstream employment, do you?‑‑‑No.  I think the concept of a wage classification structure could be used in our sector.


Maybe if I can hand up a copy of the tool, it might assist you.  Have you got that in front of you?‑‑‑Yes.


The one that I have is - the first page Draft Determinations.  Is that what you've got?‑‑‑Yes.


And then there are a bunch of lines that are crossed out in grey?‑‑‑Yes.


And then we get schedule 1 on the second page, Work Value Classification Structure.  Do you see that?‑‑‑Yes.


This is what's being proposed by ABI in these proceedings and the New South Wales Business Chamber.  Are you familiar with this document?‑‑‑Yes, I've seen this previously.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


You've seen it.  And this is the one you think applies in mainstream employment?‑‑‑Not this particular document, I don't think applies.  I think a - my message, what I'm trying to say is my personal belief is the SWS is not effective for our sector, it's certainly not effective for Flagstaff; and that the classification structure would be a valid option, rather than having to mandate that the SWS gets applied across the board.  That's my opinion.


I know that your belief, Mr Burgess, but you've got no experience of the operation of this tool, do you?  I'm talking about the toll proposed by ABI.  You haven't used it?‑‑‑No.


No.  You haven't costed it either?‑‑‑No.


And you've got no experience in the SWS either?‑‑‑Not at Flagstaff, no.


So you don't know what the impact will be in the application of either tool, do you?‑‑‑I can't comment on what the application of the wage value classification structure would be, but I have seen - and I don't have in front of me, but I have seen documentation, at least from the DSS, that they anticipated - I think it was 59 per cent increase should the SWS be applied.


Flagstaff has no specific data that will enable this Commission to assess the wage impact of application of the SWS to Flagstaff employees, does it?‑‑‑Not our own produced data, no.


And you have no data that you can provide to this Commission that will explain the impact on your wage costs of this tool proposed by ABI either, have you?‑‑‑The classification structure?




If you can turn to page 3?‑‑‑Of the structure?


Yes, that's right.  Hopefully my page - actually page 4, I think, at the bottom; at the top of the page you should see, "3:  rate of pay."  Do you see that?‑‑‑Yes.


And you've got weekly ordinary rate, and then it states - it has got a table that sets out the percentages weekly ordinary pay.  The intention, as I understand it, Mr Burgess - correct me if I'm wrong - is that these percentages are intended to be percentages of the grade 2 minimum rate, the grade 2 as it appears in the modern award rather than your agreement.  Do you understand that?‑‑‑Yes.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


And you will see it moves from A, B and to C, and at C(i) we get 45 per cent.  Do you see that?‑‑‑Yes.


And then it allocates a percentage of the grade 2 rate all the way up to 100 per cent?‑‑‑Yes.


And that's inconsistent with your own tool, isn't it?‑‑‑Yes.


Do you not see any difficulty in circumstances where you accept - that is, Flagstaff accepts that the SWS should apply to employees at 45 per cent and above, and this tool does not?‑‑‑This would be the tool we would be using.  You wouldn't have tools - I don't understand your question.


You've accepted that there's an inconsistency between your tool, the Flagstaff tool, and this proposal by ABI?‑‑‑Yes.


How to you justify, as a supporter of the wage assessment tool - how do you justify the application of this tool when it's inconsistent with your own?‑‑‑I can answer you my personal answer to this, and I don't know how the board would feel about this, but my answer is the application of our tool is a point in time thing.  Right now this is the tool that we apply.  If this tool was to be introduced and even mandated, that would be the tool that would apply.  I wouldn't be looking to apply both.


No, exactly, you would apply one; this tool, wouldn't you?  This one here, the ABI tool, that's the one you would apply?‑‑‑Yes.


What if the SWS was mandated?  What's the difference?‑‑‑The SWS?  The difference there is the strong reliance on speed and productivity of the person in relation to the task.  This gives the task a value.


Mr Burgess, you have no experience with the SWS tool?‑‑‑Well, I've never applied it, I'm not an assessor, but I have read it.  I've had extensive consultation with other organisations that have looked into applying it.  I was at the conciliation process that started some three years ago that had specialists in the field provide presentations.  I'm not completely ignorant to the application of the tool, but I will accept that we haven't applied it at Flagstaff.


You say that, but you've just said that it's a speed test, didn't you?  That's what you say the SWS is, a speed test?‑‑‑There's a component of that associated with SWS.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


Okay.  There is another component which measures the quality, though, doesn't it?‑‑‑Sure.


Sure, so it's not just a speed test.  Do you accept that?‑‑‑I accept that it's not just a speed test.


Thank you.


VICE PRESIDENT HATCHER:  Mr Burgess, if you just go to the work value classification structure on page 7.  You will see there's a definition of level C?‑‑‑Yes.  Is that paragraph A4?


A4, that's correct?‑‑‑Yes.


Would Flagstaff have any supported employees who you think might fall within those criteria?‑‑‑Yes, we would, your Honour.


How many?‑‑‑It would be a very small percentage, your Honour, but there would be several.


So if you just go back to the percentage table on page 4?‑‑‑Yes.


You will see level C starts at 45 and goes to 60, so it would seem that the application of this structure would lead to possibly fairly significant pay increases, at least for the several people who might fall in that category?‑‑‑Yes, that's correct, your Honour.


Would any fall in level D?‑‑‑Yes, sure.  I can think of a couple of employees who would fall within that.


And again you would accept if that's right, then according to page 4 they would receive an even bigger pay increase from what they would be now?‑‑‑Yes, your Honour.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


In terms of the models used now in this structure, why does one produce such a different result to another in terms of employees who fall within this category?  That is, you've currently got everyone under your tool falling 45 per cent or below; this structure which you're giving at least some conditional support for - ranks some of your people much, much higher.  How do we line up those two propositions?‑‑‑It just falls to the tasks that we have available at our organisation.  We don't measure the ability or the potential ability of the person.  We can only provide the tasks that we have to offer at the time.  This is a measure of the skill required to do the task.  If the person is undertaking the task, then we would readily accept that they get paid accordingly.


Does that mean that even though, as you've identified, some people currently might fall within the criteria under level C or D, you might not pay them at those levels because the tasks you have don't line up with their personal capacities?‑‑‑That's right, your Honour.  I can think of a couple of supported employees who could in my opinion be readily working in open employment but choose not to.  With this structure they could choose to remain in supported employment and be paid accordingly.


I'm just trying to work out what the paid accordingly is.  That is, if you meet the criteria level C or D but the only task Flagstaff as to offer is a task which would be more appropriate for A or B, what do they get paid?‑‑‑Currently under our - - -


No, what would they get paid if this was introduced?‑‑‑If we could create the task that was appropriate to the grading, they would get paid at that grading if they were undertaking the task.


And if you couldn't?‑‑‑We wouldn't be able to apply it, your Honour.  We would be limited to the work that we have available to offer.


Right.  I just want to clear about this.  So even though - if this structure was introduced, even though you had the C or D criteria personally, if you didn't have a task at that level, you only have a task which matched A or B, they would be paid under A or B?‑‑‑They can choose to take that, that's right, your Honour.


Thank you.


MR HARDING:  You just said to his Honour that you had employees at level C, and I thought your evidence earlier was that you didn't have anyone above 45 per cent.  Is that just because you don't pay anyone at above 45 per cent because of the tasks?‑‑‑We don't have any tasks above that rate.  I certainly know of people that - my personal opinion of them is that what capacity to do that, but we don't have those tasks available.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


What's an example of one of the tasks that you do have available at, say, level B and level A?‑‑‑An example of the top of my head would be folding towels.


Is that a level A or a level B?‑‑‑From memory I think it's a level B.


So you rate that at a level B, folding towels, you say?  I may have missed that, I may have - - -?‑‑‑That's my understanding, yes.


That is your understanding?‑‑‑I don't apply the tool myself personally, but my understanding.  My memory of it is it's a level B.


Can I just hand you a copy of the award, please.  This is the modern award, the Supported Employment Services Award 2010.  I'm just getting a copy for your assistance.  The Bench doesn't need a copy, I assume.




MR HARDING:  Are you personally familiar with the Supported Employment Services Award yourself?‑‑‑Yes.


You are?  You will know, then, that the award has a series of classifications in schedule B from page 35, if you want to have a look?‑‑‑Yes.


You will accept that grade 1 is a training grade similar to the Flagstaff grade 1?‑‑‑Yes.


And then grade 2 is anyone who's performing work within the level described at B.2.2.  And then at B.2.3 are a series of indicative tasks which an employee at this level may perform.  You see that?‑‑‑Yes.


And then if you go through, there's a bunch of tasks.  If you go through to page 37 you will see that there's a heading Laundries?‑‑‑Yes.


And that says - the second dot point is folding?‑‑‑Yes.


That's folding.  That's similar to folding towels, isn't it?‑‑‑Yes.  Well, I would interpret that as ‑ ‑ ‑


You would interpret that?‑‑‑Yes.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


That's where you would say it would fall?‑‑‑Yes.


And so a person folding would be paid a rate of pay corresponding with grade 2; and/or someone loading.  So they're discrete tasks.  You would accept that interpretation?‑‑‑Yes.


And you, under your system, would put folding at level B, that's as a fixed allocation of the rate of pay?‑‑‑It would be a grade 2 role, level B, using the task analysis sheets.


Okay.  Thank you.  If I can take you to paragraph 53 of your first statement.  You refer to automation.  When you talk about removing automation, that implies that you had it and then you took it away.  Is that the case, or you just didn't introduce automation?‑‑‑No, we've had that.  We've applied that in the workplace.


If you could go back to paragraph 15 of your statement.  This tells us a bit about one of your operations, which is the print and mail operation?‑‑‑Okay, yes.


And you say that you've been required to de-automate the process so that the activity can be undertaken by supported employees?‑‑‑There have been times when we've chosen to, yes.


So sometimes you do, sometimes you don't?‑‑‑If we can de-automate it and make a task available for supported employees and it would be feasible to do it, we would do that.


How do you automate reception and administration, basic filing?‑‑‑Okay.  So for example for administration, rather than have rostering or time keeping, we wouldn't have software to do that; we wouldn't have log on software, that's done manually; we would create the system where a supported employee can data entry it manually.


So you've got employees doing data entry time keeping for other supported employees?‑‑‑Across the board.  So the sign-on sheets and sign-off sheets, they will be inspected - it's report by exception.  The supported employee would go through and if there's an exception of the time start or finish of a person, then enter that in.


It's a bit more than basic filing, though, isn't it?‑‑‑No.  Why?

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


You've got, "Administration (basic filing)."  That's intended to tell us something about the level of administration; but you've got supported employees performing work monitoring the time of work of other supported employees.  Isn't that your evidence?‑‑‑Yes.


What about reception?‑‑‑Yes.  What, you mean ‑ ‑ ‑


How do you automate reception?  I'm assuming a reception is someone who says hello when someone walks in the office's doors?‑‑‑Okay.  Yes, that's right, we do that personally rather than have - primarily this is in relation to phone-ins.  So rather than have software that just gives you an automated robotic voice and redirects your call to the necessary section, this is done in person.  So a person will actually receive that phone call.


Are you suggesting you do that because you want to give a supported employee a job?‑‑‑I can say to you that we've reviewed automated software and decided not to do it.


You talk about:


The ratio of supported workers in this division being quite low, 2:1, due to the fact there is a high number of supervisory staff required due to the nature of the industry.


You see that?‑‑‑Yes.


What you're saying there is that because you've got machinery which requires sometimes trade-certified staff, that you need a higher ratio.  Isn't that what you mean?‑‑‑That's right, you need more staff to operate that trade ‑ ‑ ‑


You need more qualified staff?‑‑‑Yes.


And it would be correct to say, isn't it, that the qualifications that would apply in any situation, you need qualified staff.  It's not really a matter of having a disability or not having a disability, you need someone with a particular qualification to operate that machinery that you have for that work?‑‑‑Operating the machinery is part of the job that's involved.  For me it would be irrelevant if the person had a disability or didn't if they were trade qualified and able to meet the demands of the job.

***������� STEPHEN CHARLES BURGESS������������������������������������������������������������������������������������������ XXN MR HARDING


Yes, but it's unlikely that you've got a supported employee who's trade qualified?‑‑‑We do have a supported employee ‑ ‑ ‑


You do?‑‑‑I'm not sure if they actually - I think they're formally trade qualified, but as a result of their injuries that they've sustained since getting their qualification, they're unable to maintain that task.


So they've got the qualifications, but you're not using them for that role?‑‑‑No.


So I go back.  So you've got a high ratio because you need, in that part of your business, employees who have got qualifications that your supported employees don't have or can't perform?‑‑‑Yes.


In paragraph 87 you talk about the scope for some increase to supported wages to be absorbed by the divisions.  You're talking here about a situation in which the SWS is a mandated tool, are you?‑‑‑Any tool.


Any tool?‑‑‑If the mandated requirement was that regardless of any task, a person would be paid at minimum wages; that's what I'm saying there.


I suggest to you under either proposal, be it SWS or the work value tool proposed by ABI, you don't have any evidence that confirms that any one of your employees would be operating at close to or actual minimum wages, do you?‑‑‑No.


Thank you.  No further questions.

RE-EXAMINATION BY MR ZEVARI�������������������������������������������� [11.18 AM]


MR ZEVARI:  Mr Burgess, just a matter arising from his Honour's question pertaining to the - I will call it the ABI structure, the work value classification structure - you've still got that in front of you?‑‑‑Yes.


Could I take you to page 7, the last paragraph on that page.  Can you just read that?‑‑‑It says:


Note:  an employee who has the ability to carry out tasks at a higher level will not be paid at a lower level simply because higher level tasks are not available.

***������� STEPHEN CHARLES BURGESS���������������������������������������������������������������������������������������������� RXN MR ZEVARI


Is your answer to his Honour's question, having read that paragraph, the same?‑‑‑I can see how there's a conflict between what I've said and that statement.  I don't know how that would be operationally applied if you can't create the role, if you don't have the job.


Thank you.


VICE PRESIDENT HATCHER:  In practice it may mean that ABI's proposal would operate upon the abilities of the individual, not the work they're undertaking, which means that going back to the ones you said might fall in C or D, you would have to pay them C or D wages regardless of what work you had for them to perform.  Do you understand that?‑‑‑I understand that.


And would that have any implications for your business model?‑‑‑It would have application for our business model, yes.


Would it have implications for your business model?‑‑‑Implications?


Yes?‑‑‑It would have adverse implications.


MR ZEVARI:  Mr Burgess, one final matter.  On that same page and the preceding page, could you just read out what it says, let's say at 8.2 level A.  Could you just read out that first line, if you would?‑‑‑


An employee at this level has rudimentary basic work skills.


Base work skills?‑‑‑Base work skills, sorry.


Is that language replicated in the subsequent levels?  And I'm referring to the use of the word "has"?‑‑‑The term "has" and "base work skills" are replicated in the subsequent levels.


So again, with respect to questions you were asked pertaining to this, does that affect the answers that you gave?‑‑‑I think when I read this in this draft form, that validates what I said.  They have the base work skills and then meet the requirements of the task.


Nothing further.  Thank you, Mr Burgess.

***������� STEPHEN CHARLES BURGESS���������������������������������������������������������������������������������������������� RXN MR ZEVARI


VICE PRESIDENT HATCHER:  Thank you for your evidence, Mr Burgess.  You're excused and you're free to go.

<THE WITNESS WITHDREW��������������������������������������������������������� [11.22 AM]


VICE PRESIDENT HATCHER:  We will just take a morning tea adjournment of about 10 minutes shortly.  Mr Zevari, you can deal with this at a convenient time, I don't want to rush you, but I think we need to have a better understanding as to whether the ABI proposal in terms of the classification criteria are applying to the personal characteristics of the disabled employee or whether they apply to the work actually being done by the disabled employee.


Because we're going to hear evidence of people's opinions about this, I really want to proceed upon a correct understanding of what's actually being proposed.


MR ZEVARI:  Certainly, your Honour.


VICE PRESIDENT HATCHER:  We will now adjourn.  We will resume in 10 minutes.

SHORT ADJOURNMENT����������������������������������������������������������������� [11.23 AM]

RESUMED�������������������������������������������������������������������������������������������� [11.42 AM]




MR ZEVARI:  Yes, I am in a position now to answer your Honour's question.




MR ZEVARI:  The assessment is intended to be - in our view, the wording is not clear on this point, but certainly there is space for amending it - as part of the iterative process, it is the assessment is of the individual rather than the task.




MR ZEVARI:  The question of what tasks are available within a particular ADE is a matter for whether a person obtains a job or in fact retains a job over time.  If, by way of example, someone was at the highest level, assessed at the highest level, obtained a job to do to that work at that ADE and subsequently, let's say we were talking about automation of particular reception processes, that role was no longer available, in the ordinary course, there would be a consultation process in accordance with the SESA, redundancy, et cetera.  Now there's no current capacity within the structure, your Honour, for any kind of consensual lowering of a person's classification, it's intended to be - it is what it is, essentially, in terms of - it may change over time when there's reclassification processes, but that's dependent, of course, on the person's competence in accordance with the structure.  That is something - - -


VICE PRESIDENT HATCHER:  The bigger question arises is if somebody who is capable of doing level D work is offered level B work and accepts it.


MR ZEVARI:  Yes, on the current wording of the structure, there would be no capacity to - if you offered someone the level B work, then you would still have to pay them in accordance with the level D work because that's the level of competency they are assessed at now.  Again, if there's an amendment required in terms of that, that's something we can explore as part of the process, your Honour.


VICE PRESIDENT HATCHER:  Then it raises further complexities because then, on one view, you are not assessing work value at all, you are assessing an individual's personal competencies and characteristics.




VICE PRESIDENT HATCHER:  All right, who's the next witness?


MR ZEVARI:  Mr Rohan Braddy, thank you.


THE ASSOCIATE:  Please state your full name and address?


MR BRADDY:  Rohan Martin Braddy, care of 159 Derrimut Drive in Derrimut, Victoria.

<ROHAN MARTIN BRADDY, SWORN����������������������������������������� [11.45 AM]

EXAMINATION-IN-CHIEF BY MR ZEVARI������������������������������� [11.45 AM]


VICE PRESIDENT HATCHER:  Just before we go on, Mr Harding, did you want to tender the copy of the Flagstaff Agreement?


MR HARDING:  Yes, your Honour, I do.

***������� ROHAN MARTIN BRADDY���������������������������������������������������������������������������������������������������������� XN MR ZEVARI


VICE PRESIDENT HATCHER:  All right.  The Flagstaff Group Certified Agreement 2004 will be marked exhibit 24.





MR ZEVARI:  Thank you, your Honour.


My name is Sina Zevari, I appear in these proceedings on behalf of the Australian Business Industrial and New South Wales Business Chamber.  Is your name Rohan Braddy?‑‑‑Yes, it is.


Is your address c/o 159 Derrimut Drive in Derrimut, Victoria?‑‑‑Yes.


Have you completed a statement in these proceedings dated and signed 25 October 2017?‑‑‑Yes, I have.


Is that statement in front of you?‑‑‑No, it's not, but I can - - -


I will hand up a copy to you?‑‑‑Thank you.


Does that statement in front of you, Mr Braddy, run to eight paragraphs?‑‑‑Yes, it does.


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


Is the statement true and correct to the best of your knowledge an belief?‑‑‑Yes.


I seek to tender that statement.


VICE PRESIDENT HATCHER:  The statement of Rohan Braddy dated 25 October 2017 will be marked exhibit 25.


***������� ROHAN MARTIN BRADDY���������������������������������������������������������������������������������������������������������� XN MR ZEVARI




MR HARDING:  Thank you, your Honour.

CROSS-EXAMINATION BY MR HARDING�������������������������������� [11.47 AM]


MR HARDING:  Mr Braddy, you are the Chief Executive Officer of Mambourin?‑‑‑Yes.


And Mambourin provides a range of services, doesn't it?‑‑‑That's correct.


To disabled employees in the region that you operate in?‑‑‑Yes.


Including but not limited to business services?‑‑‑Correct.


You have a manager that oversees the business services?‑‑‑Yes.


Her name is Lorraine Bartolo?‑‑‑Bartolo, yes.


She participated on behalf of Mambourin in the conciliation proceedings before her Honour; are you aware of that?‑‑‑I'm aware that she's participated in proceedings before but I couldn't say who it was before.


Perhaps I am incorrect about that.


VICE PRESIDENT HATCHER:  Mr Braddy, can I ask you to sit a bit closer to that microphone so that we can record your voice properly?‑‑‑Sure.


MR HARDING:  You say in your statement that you have been utilising the SWS in your enterprises since 1996; is that right?‑‑‑Yes.


It's a very long time, isn't it?‑‑‑Since 1996.


It's a very long time, isn't it?‑‑‑It's since 1996.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


You don't have day to day contact - you don't perform the assessments yourself, do you?‑‑‑No, I do not.


That is done by Ms Bartolo and her supervisory staff?‑‑‑No, that's not correct.


No?  It's the independent assessors?‑‑‑Correct.


But she has dealings with those assessors and you don't?‑‑‑From time to time, I do encounter them, but in a formal way, she's the one that deals with them, yes.


She has the same view as you in relation to the SWS in your enterprise?‑‑‑Yes, my statement was made in consultation with my colleagues, yes.


Including Ms Bartolo?‑‑‑Yes.


You say in paragraph 3 that Mambourin didn't choose to use the SWS, rather it was foisted upon you.  You are aware of the award, aren't you?‑‑‑Yes.


And its terms?‑‑‑Yes.


You realise that clause 14.4 allows for an employer to choose?‑‑‑Yes.


And you have chosen the SWS?‑‑‑At the time - the reference to the SWS being foisted upon us, that was the only tool that was available in the late 1990s or early 2000s.


Since this award was made in 2010, it's been a choice?‑‑‑It's been a choice by the employer to use SWS, yes.


It was also the case under the predecessor award there was also a choice?‑‑‑Yes, that's correct.


So, for a very long time, Mambourin has chosen to stick with the SWS?‑‑‑Since 1996.  With the exception, if I may add, we did have 14 new employees start on BSWAT for a period and, by coincidence, it was proximal to the Nojin decision being handed down and we decided at that point to move away from BSWAT and move those employees onto SWS.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


Yes?‑‑‑So we were endeavouring to move from SWS around that time.


That lasted for only a brief time?‑‑‑To the best of my recollection, about 18 months.


And you just stuck with the SWS?‑‑‑"Stuck with it" is a good expression, yes.


Well, you didn't choose to go somewhere else, did you?‑‑‑Choosing to go elsewhere is very difficult industrially.


VICE PRESIDENT HATCHER:  Mr Braddy, when you transitioned the 14 employees from BSWAT to SWS, what, if any, effect did that have on their wage costs?‑‑‑Of the 14, two went down slightly between 2 and 3 per cent and the other 12 went up substantially, approaching double from what they were under BSWAT to what they were under SWS.


Thank you.


MR HARDING:  But you haven't offered any specific evidence of that in your statement, other than your observations, your recollections?‑‑‑I haven't tendered that evidence in my statement, no.


Can I show you a document, please.  This is the annual report of Mambourin for 2016/2017?‑‑‑Thank you.


Do you recognise this document?‑‑‑Yes, I do.


This is the Mambourin Enterprise Limited's annual report?‑‑‑It appears to be, yes.


When you say "it appears to be", this is the report, isn't it?‑‑‑Well, to the best of my observation here and now, it appears to be, yes.


Cory Becker is your chair?‑‑‑Yes, he is.


If you go to about the third page, there's a report from Mr Becker and, in the second column, about halfway down.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Which page, Mr Harding?


MR HARDING:  About the fourth page in.




MR HARDING:  Yes, numbered 1 at the bottom left, correct, your Honour.


He tells us that - well, I'll go back a bit actually.  He first tells us that the focus of Mambourin has been on preparing for the changes that the NDIS is bringing and then he tells us, in the next column, the second column, about halfway down:


As a result of our excellent financial position and positive service delivery outcomes, we have deliberated on a number of opportunities for innovation and growth.


That's correct, isn't it, you've been growing?‑‑‑Yes.


If we keep going through the report to page 13, there's a heading "Supported Employment", do you see that?‑‑‑Yes.


That tells us, doesn't it, that your enterprise has grown considerably:


More corporate customers than ever are choosing to use Mambourin as part of their supply chain.


?‑‑‑Yes, it says that.


Well, it's true, isn't it, you've been growing?‑‑‑Yes.


And you have been growing even though you've been using the SWS?‑‑‑That's true.


Can I hand you another document.  Your Honour, can I tender the annual report, please?

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Yes, the Mambourin Enterprise Ltd annual report 2016/2017 will be marked exhibit 26.



MR HARDING:  Mr Braddy, that's a photograph of you; do you agree with that?‑‑‑Yes.


It says, "Welcome to Mambourin's website."  So that's what is on your website currently, isn't it?‑‑‑I'd have to actually check.  We are in the process of updating our website, but if you've pulled that off recently, I'm happy to accept that.


The second paragraph tells us that:


In recent years, Mambourin has grown very significantly in size and has become a leading provider of disability services in the State.


So all of that has occurred and you've been using the SWS as your tool to assess wages for your workers?‑‑‑Yes.


That's fair, isn't it?‑‑‑That's correct, yes.


Mr Braddy, it is correct to say you are aware of National Disability Services, aren't you?‑‑‑Yes, I am.


You are aware that National Disability Services opposes the AED's application to vary the award to make the SWS the mandated tool?‑‑‑Yes, I'm aware of that.


You are also aware that the National Disability Services supports the proposal for ABI for its classification tool?‑‑‑Yes.


You are on the board of NDS, aren't you?‑‑‑Yes, I am.


Why didn't you tell the Commission that in your statement?‑‑‑I didn't deem it relevant.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


Mr Braddy, you have come along, you've given some evidence about the criticisms you have of the SWS, but you don't disclose that you're on the board of an organisation that opposes the SWS?‑‑‑If that's an oversight, I apologise to the Commission.


Are you a qualified SWS assessor, Mr Braddy?‑‑‑No, I'm not.


Can I take you to paragraph 5 of your statement, please.  You say:


Implementation of the SWS in an ADE is highly problematic for a number of reasons, the most significant of which being any supported employee is usually assessed on one task, that being a task that they can do well.


That's not true, is it?‑‑‑It is true in our experience.


You know full well that the SWS assesses a worker on the basis of the tasks they perform?‑‑‑Yes.


As required by the employer?‑‑‑And generally the employees are assigned to tasks that they can do.  There's not much point in assigning an employee to a task that they can't do.  The business would be out of business in no time.


It is the case, isn't it, that the employer gets to choose the task that they want their employees to do?‑‑‑Are you suggesting that an employer would set an employee up for failure - - -


I'm not suggesting anything?‑‑‑ - - - and assign them as task that they can't do for the purposes of an assessment?  That's ludicrous.


Mr Braddy, I am asking you a question.  The employer gets to choose the tasks that they assign to their workforce, don't they?‑‑‑Yes, they do.


Like any other employer?‑‑‑Correct.


And the SWS operates on the basis of the tasks that the employer assigns?‑‑‑Yes.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Mr Braddy, when you accepted that you choose a task which the employee does, does that mean that you have a set series of tasks and then you find employees who can do those tasks, or is it the other way round, you have a group of employees and then you design tasks which those employees can do, or is it a mixture of both?‑‑‑Your Honour, it's likely to be a mixture of both in a productive workplace.  We have jobs that employees have been doing for some time and they've been trained in and they are competent at to the degree that they are, and then we might have a new job come in that requires new skills and new training of the existing workforce in order to be able to do that job.


How do you select an employee for that job?‑‑‑Ultimately, we're a purpose-driven organisation, so we're about trying to create great employment outcomes for people with disabilities and we will try and find a person who is willing to have a go and also we think has got the potential to be able to be trained into doing that new job.


Thank you.


MR HARDING:  Just a question arising from that conversation with his Honour, the way it works is that you have tasks arising from agreements that you have with those that you provide work to; is that right?‑‑‑I'm not sure I  understand if there's a question there.


You provide services to organisations with whom you have a contract?‑‑‑Yes.  Contract in a nominal sense.  It's generally not a legal contract but an arrangement to provide services.


An arrangement?‑‑‑Yes.


So you provide services to them, they pay you money for what you provide?‑‑‑Yes.


That involves the provision of work by your workforce?‑‑‑Correct.


In relation to that, you have specific tasks that you want performed in discharge of your responsibilities to your clients?‑‑‑Yes.


And you will select an employee who you think can perform the task?‑‑‑Yes.


Then they are assessed under the SWS on those tasks?‑‑‑Correct.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


You have a range of employees where their disabilities affect them in different ways?‑‑‑That's correct.


It is the case, isn't it, that you are able to utilise - if you've got an employee with higher capacity, you are able to deploy them on some things that workers with lower capacities can't perform?‑‑‑To some degree that's true, yes, although there are limits.


At the end, you are managing a workforce, aren't you, with a variety of different skills and capabilities?‑‑‑Yes, we are.


Like any employer?‑‑‑That's correct.


In paragraph 6, you talk about:


An issue with the SWS in supported environment is where a person has a low productivity assessment and is on the minimum weekly wage where their total productivity in a working week is less than the equivalent value of the minimum wage.


You say that is a problem because a person in this situation often refuses to work additional hours because his/her weekly wage will not increase beyond the minimum weekly wage?‑‑‑Yes.


You realise the modified SWS has disposed with the minimum wage, don't you?‑‑‑I am aware of that, but I wasn't aware that the modified wage applied yet.


Not yet, but it will?‑‑‑M-mm.


Does that dispose of your concern?‑‑‑It disposes of that specific concern, yes.


In paragraph 8, you talk about other shortcomings of using the SWS in supported employment.  You say:


They would be overcome with the proposed modifications to the SWS currently before the Commission.


And you go on to say:

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


However, it remains unclear to us whether the modified SWS would be applicable to employees currently employed on the SWS.


Yes?‑‑‑With respect, I said it's "possible" that some of the shortcomings would be overcome, not that they would be.


Yes, I accept that correction.  But your concern in the second sentence is that you're not clear that the modified SWS would be applicable to employees currently employed on the SWS?‑‑‑I've had some advice at the time of writing this statement that it's possible that employers who are currently using the SWS would not be able to move their workers to a modified SWS.


You say that's advice, but you don't know that for yourself?‑‑‑That was advice that I was given, yes.


VICE PRESIDENT HATCHER:  Does that mean to the extent that a modified SWS might produce a lower pay result, you wouldn't be able to move them to a lower wage rate?  Is that what you are talking about?‑‑‑I'm assuming that's the justification, your Honour, with the advice, yes.


MR HARDING:  His Honour has anticipated my next question.  That was the question I was going to ask you.  The ADE has proposed in these proceedings that the clause in the award be modified to allow precisely that.  Does that satisfy your concern?‑‑‑As long as - if we were to move to a modified SWS and that was open to us, we would move to that, yes, in the absence of any other wage tool being available to us.


That satisfies your concern, doesn't it?  You could pay someone less if their productivity was less?‑‑‑My concern specifically addressed in this paragraph 8 was that we weren't going to be able to move to the modified SWS if it were to come in and that's what I was addressing there.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


You said if there's no other wage tool available.  What are you referring to?‑‑‑Well, as I mentioned earlier, we were exploring over a number of years moving to a different wage tool.  Industrially, it was a very difficult environment, there was a large amount of uncertainty.  We did start down the - but we couldn't get any support from - well, that's not fair - we couldn't get any specific advice from FaCSIA, which is now DSS of the day.  They said we were on our own, we needed to obtain our own legal advice.  Lawyers are expensive and so it took us a long time to form the view that we could legally move to BSWAT.  We went down that path, the Nojin case was handed down and then we backed away from that path.  That's not to say - and there's been uncertainty in our sector now over wage tools for a number of years and we feel like we've been in limbo.  When this matter is settled and there's a clear outcome, whichever way the Commission decides that will go, we will then make our decisions accordingly on which wage tool we may use within our workforce.


Is your object here to reduce your wage costs?‑‑‑Not specifically.  Our object is to be able to be operating fairly and competitively with all of our competitors who are out there and we feel at the moment, we are at a competitive disadvantage.  Our average hourly rate is $8.93 and the national average rate is $5.37.


So you do want to lower your wage costs?‑‑‑We want to be competitive in the market, yes.


When you say "competitive", you want a common platform for determining wages for all ADEs?‑‑‑That would certainly be a good outcome for us.


Because your competitors you are referring to are other ADEs that perform similar work?‑‑‑Not exclusively.  We also compete in the western suburbs of Melbourne with prisons, but, yes, primarily ADEs, yes.


In those circumstances, you want the lowest cost tool that is industrially available?‑‑‑What we want is a tool that provides a fair outcome for a fair day's work, to use that colloquialism.  At the moment, we feel our wages are artificially inflated above what the true productivity of our supported employees are on average.


But if the outcome was that everyone else was paying an average of 8.93 like you were, does that resolve your issue?‑‑‑Potentially it would, your Honour, yes, because then it would be a level playing field.


Which is the principal concern?  You want a level playing field?‑‑‑Correct.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


DEPUTY PRESIDENT BOOTH:  Mr Braddy, sorry if you have already answered this in your statement and I haven't seen it, what kind of work is it that your employees are doing, what kind of services are you supplying your customers?‑‑‑Your Honour, I don't think I put that specifically in our statement.  We have two main activities, one is commercial gardening services where we have a garden crew go out into aged care facilities and hospitals and large facilities like that- we tend to steer clear of domestic work - and the other one is a warehouse environment where we're doing packaging and assembly and light manufacturing and some third party logistics.


Thank you.


MR HARDING:  Thank you, I have no further questions, your Honour.


VICE PRESIDENT HATCHER:  Mr Braddy, just in regard to what you have said in paragraph 4 of your statement about Mambourin's financial position, I am just looking in the annual report at the financial performance page, which I think is page 8, although it's not actually numbered?‑‑‑Yes.


The overall operation is obviously operating at a profit?‑‑‑Yes, that's right, your Honour, and it's relevant to the questions before about the organisation is growing.  We need to distil our ADE from the larger organisation.  The larger organisation, as you can see there, in the last financial year was about $12 million turnover.  Our ADE, it was only approximately $1 million of that.  So it's a relatively small component, 57 funded places compared to nearly 500 people supported in our day services.


Is that reflected in the sales revenue figure?‑‑‑The sales revenue is a high level number that's got other sales throughout our day services as well.


But the sales revenue from the ADE would be a smaller number than the total figure there?‑‑‑Yes, it would be considerably smaller.


So the primary source of income is grants?  Is that primarily Commonwealth support in various forms?‑‑‑Yes, the order of 70 per cent of our total income is government grants, yes.


If you go down to - - -?‑‑‑I'm sorry, may I correct that, that's state government.  If we added on DSS funding, it would be more than 80 per cent of our funding would be - our income would be funding.


In terms of employee benefits expenses, are you able to say what proportion of that would be paying supported employees in the ADE?‑‑‑No, not with any accuracy.  I'd have to take that question on notice, your Honour.


All right?‑‑‑We would have the data available, but I don't have it in front of me.


Thank you.  Mr Harding, did you want to tender the website extract?

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


MR HARDING:  Yes, I did.  I will tender that.





MR HARDING:  Just a question arising, your Honour?




MR HARDING:  His Honour has taken you to the financial reports and you have given some evidence about contribution of your ADEs to those numbers, but your annual report does say, and you accepted, that the supported employment function is growing?‑‑‑I think I accepted that the statement that you read was correct.  I think, from memory, it was in reference to the number of customers that we were attracting.  I don't think it specifically says it's growing in real terms.  So, what we've tried to do is to diversify our customer base as a way of ensuring our longer term sustainability and not be so dependent on one or two high value customers as we were in the past.


You are not suggesting, though, that your income from supported employment has remained static?‑‑‑It certainly hasn't grown substantially and it certainly hasn't grown in proportion to the rest of the business.


Well, you say, "Our enterprise has grown considerably"?‑‑‑Could you refer me to the page, please?  I think that was in reference to the number of customers.


Page 13, "with additional commercial contracts"?‑‑‑Yes, that's in reference to the number of commercial customers that we're supporting.


Okay?‑‑‑It doesn't say, with respect, that we've grown considerable in dollar terms.


Well, you're not making a loss, are you?‑‑‑Yes, we are.  Our ADE alone has been in the red for the last three years.

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


Notwithstanding, page 12, you are increasing the number of your supported employees by three over the last financial year?‑‑‑That must have been a stretched capacity because the number of places is capped at 57.  Page 12?  No, I'm sorry, that's new employees, so that's rotation, so that's three out/three in.  Our funding places are capped at 57.


It is the case under the NDIS that that cap's gone, isn't it?‑‑‑That's my understanding, yes.


Thank you, no further questions.


VICE PRESIDENT HATCHER:  Any re-examination?


MR ZEVARI:  Your Honour, I just need a few minutes to confer with my colleagues about a potential question, so I just ask for a brief adjournment.


VICE PRESIDENT HATCHER:  Do you oppose that, Mr Harding?




VICE PRESIDENT HATCHER:  All right, we will adjourn briefly.

<THE WITNESS WITHDREW��������������������������������������������������������� [12.14 PM]

SHORT ADJOURNMENT����������������������������������������������������������������� [12.14 PM]

RESUMED�������������������������������������������������������������������������������������������� [12.23 PM]

<ROHAN MARTIN BRADDY, RECALLED���������������������������������� [12.23 PM]


VICE PRESIDENT HATCHER:  Mr Braddy, you're excused and you're free to go.

<THE WITNESS WITHDREW��������������������������������������������������������� [12.23 PM]


VICE PRESIDENT HATCHER:  Before we call the next witness, can I just ask the parties whether anybody would be in a position to provide us with a document which sets out the criteria for the four levels of DMI finding?


MR HARDING:  I think we probably would be able to do that.  We're probably going to be in a position to provide that to the Full Bench by tomorrow, is that convenient?

***������� ROHAN MARTIN BRADDY��������������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Yes, that's fine, we'd just like to have it before us at some stage.


DEPUTY PRESIDENT BOOTH:  Would that also, though, include the questions that are asked in order to assess someone in each of those four levels?


MR HARDING:  That we are unlikely to be able to provide.  I envisage that we might be able to provide the information about the levels, by reference to data that's publicly available.  But insofar as there were questions held by the ADEs, I don't think so, but I'll get some instructions, your Honour.


DEPUTY PRESIDENT BOOTH:  I think the evidence is that they're the same question for all ADEs.




VICE PRESIDENT HATCHER:  Mr Thompson, in Canberra, would you be in a position to assist in providing us with those documents?


MR THOMPSON:  Your Honour, we'd be happy to take that on notice.  I think we would be in a position to provide those questions but if, perhaps, I can get back to the Commission later today.


VICE PRESIDENT HATCHER:  Yes, certainly, thank you.  So who's the next witness, Mr Zevari?


MR ZEVARI:  Bradly Burridge, your Honour.


THE ASSOCIATE:  Please state your full name and address?


MR BURRIDGE:  Bradley Raymond Burridge (address supplied).

<BRADLEY RAYMOND BURRIDGE, AFFIRMED�������������������� [12.27 PM]

EXAMINATION-IN-CHIEF BY MR ZEVARI������������������������������� [12.27 PM]


MR ZEVARI:  Mr Burridge, my name is Sina Zevari.  I appear in these proceeding for Australian Business Industrial and New South Wales Business Chamber.  Just confirming that your name is Bradley Raymond Burridge?‑‑‑Yes.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������������� XN MR ZEVARI


And your address is 1/112 Benaroon Road, Belmore, New South Wales?‑‑‑That's the work address.


Yes, work address, thank you.  Have you completed a statement in these proceedings, dated 25 September 2017, running to 76 paragraphs?‑‑‑Yes, I have.


And that contains one annexure?‑‑‑Yes.


Have you completed a second statement, titled Additional Statement of Bradley Burridge, dated and signed 25 October 2017, that runs to nine paragraphs?‑‑‑Correct.


Have you completed a third statement, titled Further Statement of Bradley Raymond Burridge, dated 12 December 2017, and running to 43 paragraphs?‑‑‑Correct.


Are those three statements in front of you, Mr Burridge?‑‑‑Yes, they are.


Are there any corrections you wish to make to any of those statements?‑‑‑No.


Are they true and correct, to the best of your knowledge and belief?‑‑‑Yes, they are.


I seek to tender those statements.


VICE PRESIDENT HATCHER:  All right.  The statement of Bradley Raymond Burridge, dated 25 September 2017, will be marked exhibit 28.  The additional statement of Bradley Burridge, dated 25 October 2017, will be marked exhibit 29 and the further statement of Bradley Raymond Burridge, dated 12 December 2017, will be marked exhibit 30.




***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������������� XN MR ZEVARI



CROSS-EXAMINATION BY MR HARDING�������������������������������� [12.29 PM]


MR HARDING:  Mr Burridge, you're the operations and building development manager at Centacare?‑‑‑Correct.


It operates a number of supported employment services?‑‑‑Yes.


Do you have oversight of all those services?‑‑‑Yes.


Is there a manager for each of the services?‑‑‑More like a supervisor reporting to me.


The supervisor reports to you?‑‑‑Yes.


In terms of wage assessments, are you a qualified SWS assessor?‑‑‑No.


The wage assessments, I understand you're using SWS?‑‑‑That's correct.


So the wage assessments are done independently?‑‑‑Yes.


By the Commonwealth and you provide the workers upon which the assessments are conducted?‑‑‑Correct.


You've given some evidence about the transition from BSWAT to the SWS?‑‑‑Yes, I have.


Your concern is, as I understand it, that your wage costs increased?‑‑‑Yes.


What you would like to see happen is that Centacare be in a position to provide what you term market rates, is that accurate?‑‑‑That's accurate.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


The market rates that you're referring to are the lowest rates that you can pay?‑‑‑No, I'm not considering them the lowest rates I can pay.  Market rates as in the average or - in fact, what we're paying I'd be happy to pay at the top level of what's being paid by the market.


So as long as - you're agnostic, at the end of the day, about which tool applies, so long as you're applying the same tool as your competitors, is that an accurate statement of your evidence?‑‑‑Yes, but I'd like to clarify that.  I think that - I also believe that if everybody was paying SWS we wouldn't have a competitive market, we wouldn't have a market.


Okay, I understand that, but your central concern is, isn't it, that you want to be on the same platform, in terms of wage assessment, as your competitors, who are other ADEs?‑‑‑Correct.


Leaving aside your view about the disaster that will be visited across the whole industry if SWS is applied, if you're all on the same instrument that would satisfy your concern about being required to pay more than what your competitor is paying?‑‑‑It would satisfy that concern.


Yes?‑‑‑It wouldn't, necessarily, satisfy all my concerns.


I'll deal with those other concerns shortly.  Now, you have said in your statement, I believe, that transitioning from the BSWAT to the SWS led to an 83 per cent increase in the cost of your wage bill?‑‑‑That's correct.


You've provided a document, which is an annexure to your first statement, that sets out the wages, under BSWAT, and the wages under your SWS assessments, is that right?‑‑‑Correct.


That is you've redacted, at least on my copy, the name of the employee is redacted?‑‑‑Correct.


But they are all the same employees, aren't they?  So the first one refers to an employee who was under BSWAT and then an employee who was employed in 2016/17?‑‑‑That's correct.  The employees are common for both areas.  So I have 60 today, 10 of which weren't common to both systems, so I only compared like with like.


So those employees that you're comparing like with like with have been employed by Centacare for some time?‑‑‑Correct.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


A consistent group of employees?‑‑‑Correct.


Now, it's your evidence, isn't it, that when the SWS assessment has been conducted that you have provided a common task by which the assessment can occur, a standard task?‑‑‑Yes.


You accept, in your third statement, that you have been - that that assessment has been incorrect?‑‑‑The assumption was incorrect.


Yes, so the assumption was incorrect, so you've provided a base task, for the purpose of SWS assessment, that would inflate your productivity?‑‑‑Okay, I don't necessarily agree to that.  What it did was we came - when we first joined the business, and I've only been in the business for a couple of years now, we had a situation where we had to use SWS and had found that when we put a task out for assessment there was some members of my team who couldn't actually do that task, so we had to find a task that was common for everybody.


Why?‑‑‑How can you do - the whole point of a wage tool is to come up with an assessment of where people should be paid.  How can you come up with a wage tool without a commonality factor?  You have to find a common denominator at some point.  Every wage tool has a common denominator at some point.


So you say, do you, that the SWS - you thought the way the SWS worked is you that you had to have a common basis for the assessment that applied to all your employees?‑‑‑Correct.


VICE PRESIDENT HATCHER:  But did that happen in - was that something your business decided or did that happen in consultation with the SWS assessors?‑‑‑We had no consultation with the SWS assessors.  We decided to do that, without having any feedback from them at all.  I've had dozens of SWS assessors come in over time and not one of them said to me, "You're doing this wrong."


Did they discuss with you what the benchmark should be for the given tasks?‑‑‑We covered the benchmark.  We said, "This is the task, provide an abled-bodied person", which became 100 per cent benchmark.  Now, we had a few guys in our team who did not have a disability support pension, so therefore they were on 100 per cent, so they became the benchmark for doing that task and everyone else did the same task for then on.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


So did the SWS assessors ever make inquiries about what the actual duties of each supported employee was?‑‑‑No, never.


Thank you.


MR HARDING:  But your organisation provided the SWS assessors with the task, for the purposes of the benchmark?‑‑‑We provide the task, yes, because it was the only task that we could find, in our workplace, that was common that everybody could do.  In fact, we took an element out of the task because there were some people who couldn't even do that task.


Okay.  So, at 53 of your statement, you say, the twelfth line down?


VICE PRESIDENT HATCHER:  Which statement, Mr Harding?


MR HARDING:  First statement, your Honour, exhibit 28 I think.  Yes.


Therefore we


Now, "we" is referring to Centacare?‑‑‑Correct.


set a standard task to benchmark against.  We


Referring to Centacare:


then had to modify that task because some supported employees were unable to perform the complete task.  The benchmark task has therefore become very basic.


That's the task that Centacare has devised, isn't it?‑‑‑Yes.


VICE PRESIDENT HATCHER:  So in the second sentence of that paragraph, when you say, "We were advised", advised by whom?‑‑‑By the SWS, we had to provide a task.


Did they tell you to provide a common task?  What did they tell you about what task - - -?‑‑‑To be honest, I honestly don't remember whether they said that.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


COMMISSIONER CAMBRIDGE:  Was that a task that those employees would actually perform?‑‑‑Yes, it was.


Everyone, at some stage, would actually preform the task?‑‑‑It was a task that they had all performed at some stage.  Our business, we go - we get one-off jobs that change constantly and one of the other issues we found was that because we're changing constantly we didn't have the tools of a task at the time.  So we'd have to create a new benchmark every time we - if we're doing the task that we were doing at the time, which we started off doing, we'd have to provide a new benchmark every time.


For each individual?‑‑‑For each task and each individual.  So we produced a common task that they could all use, that they all knew how to do.


VICE PRESIDENT HATCHER:  So since you've read Mr Cain's statement, have you, or anyone in the business, had further contact with SWS assessors about how all this works?‑‑‑I've spoken to SWS assessors and they still, at this stage, have never said to me, "Come up with something different."  I've had a couple talk to me recently and said you can provide extra tasks.  We're now in the second year of assessments and I'm at a point where I'm going, "Do I now change the rules after two years of going through the same process?"  And I'm also saying, "What's the point?  Now that everybody's been assessed with this task, of changing the rule mid-stream?"


MR HARDING:  Does it follow then, what's the point, so there's no commercial point in changing it, you're happy to continue going on with assessments as you've been going on with them, if you were to apply the SWS?‑‑‑I'm not happy to continue it.  The reason I keep going the way we are is that we are getting a subsidy from the Federal government.  That subsidy will drop off by another third next financial year, and it's already, at this point, not subsidising the jump in the wages.  Next year it's going to drop to about 150 K less than what we would have been paying.  So we're looking at moving away from SWS anyway.


And going to what?‑‑‑I don't know.


Okay.  Following on from Cambridge C's question to you, though, does it follow that you've got employees in your enterprise who can perform - they've got capacity to perform, to a greater extent, in the basic task you utilised for the benchmark?‑‑‑Yes, I've got employees that do much more complicated tasks.


All right.  But you've assessed those employees against the basic benchmark?‑‑‑Yes.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Could they perform their more complicated tasks at a faster or slower rate than they can perform the simpler benchmark task?‑‑‑Some of the tasks I'm talking about you can't time.  I've got senior guys in my team who do junior supervision, who look after small teams.  Those sort of tasks can't be measured on an SWS.  One person, in particular, comes out very poorly under SWS, would be at the middle range, probably lower middle, I believe if he was assessed under a different tool you'd be talking about upper middle, or even upper range of wages, because of his nature, because of his ability to look after small teams, because of the respect that he has with the other guys.  Speed is not his strength.  He's not very good on fine motor skills, but he's a highly valued member of the team.


The subsidy you receive from DSS, to your knowledge was that something that was specifically offered your business or is that available to everybody?‑‑‑My understanding is was available to anyone who moved from the BSWAT to SWS.


At that specific time or still available do you know?‑‑‑I don't know whether it's still available.  All I know we did an assessment of the actual wage jump for year 1 and they gave us that.  Then they took a third off for year 2, which we are now in.  They're going to take another third off in year 3 and year 4 we're on our own.


DEPUTY PRESIDENT BOOTH:  Mr Burridge, just going back to that gentleman who's exercising some supervisory skills in a small team, is he performing at a capacity that you consider to be less than a person who would be entitled to a full award wage for the supervisor role?‑‑‑Yes.  It's sort of like if he was in a family he'd be the older brother, or the older sister, who's looking after - mum and dad might have walked outside for half an hour and you would put the eldest child in charge, but you wouldn't put the eldest child as being - you wouldn't give the eldest child all that responsibility.  Maybe a 12-year-old, you'd put a 12-year-old in charge of smaller kids to watch over.  That's the sort of level I'd put him at.


So does he also do some operational tasks as well, or does he only do the supervisory role?‑‑‑No, no.  He's actually working while he's doing that.


I see?‑‑‑But you sort of say, "Watch over the table.  Make sure that there's no disagreements happening.  Make sure that everyone's got the tools that they need."  That sort of thing.


But your point is that if you only assessed him on the task he might be - on the SWS, he might demonstrate a lower productive capacity, but if you included the value that he's adding, as the 12-year-old in charge of the kids, he adds more value than would be recognised with the SWS?‑‑‑Exactly.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


Okay, thank you.


MR HARDING:  But you accept those supervisory tasks as being part of the duties that this employee performs?‑‑‑Yes, we use him, and others, on an as needs basis.  There as times that you wouldn't and times that you do.


Your concern is that you're not paying for the value of that work that he performs?‑‑‑Not in comparison to some others that I am paying.


It doesn't necessarily follow that in those circumstances that his pay would increase, because he's performing additional tasks?‑‑‑Yes, he doesn't get - under SWS he doesn't get any credit for that.


Well, are you aware that the SWS is designed to assess the value of grade 2 work, grade 2 in the modern award?‑‑‑I wasn't aware, but I was aware that you could take multiple tasks into the assessment.  But that, in itself, under SWS, doesn't give you - can give you a lesser assessment than what they are capable of getting.  The basic maths says if he's doing 20 per cent of one task, 40 per cent of another, 10 per cent of another, I'm not even going to add up the maths, but if you make up the 100 per cent and you take the four into account, unless that person is just as quick in the original task the other assessments will drag him down.


I understand your evidence on that subject, but the modern award, if I can perhaps give you a copy to assist, if I can take you to page 35 of the modern award, have you familiarised yourself or are you familiar with these classifications?‑‑‑Not totally, no.


All right.  Well, you can see that an employee at 2.2 performs work at this level, that's what it says?‑‑‑Yes.


And B tells us that that person works under direct supervision, there's no supervisory part of the functions performed at that level?‑‑‑Correct, but then - but the employee I'm talking about was also under direct supervision, he's just looking after a table.  He's making sure that everything is happening and flowing at the time, while the supervisor's maybe attending directly to somebody else.


That involves some supervision of other employees, doesn't it, even in the absence of the formal supervisor who has that title?‑‑‑Just as I explained to the Commissioner, as in it's no different to being the oldest child in the family and sitting there and making sure that all the kids are playing properly.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


Yes, so they're all working together, rowing together in the same direction?‑‑‑Correct.


Going back to your table, which contains the assessment of the increase from BSWAT through to the SWS, are you aware of the reasons why BSWAT was deleted from the award?‑‑‑It was deemed to be illegal.


Yes.  One of the grounds upon which the court found that that was so is because it unfairly disadvantaged people with intellectual disabilities, in terms of their rate of pay?‑‑‑I understand that, yes.


You've accepted that you've bee applying the SWS on an incorrect basis, in your third statement you said that?‑‑‑I don't believe I said made on an incorrect basis, I said that the way we were applying it was to the best of our knowledge, and it could have been applied - it could have been extended in the application, but the reality is we've used assessors, we've provided a task and they've all been assessed on it.  It could have been expanded upon but the reality is we were doing exactly what we're supposed to do.


In paragraph 36 of your third statement you say:


Notwithstanding Centacare and SWS assessors appear to have been applying the SWS incorrectly, my view remains that the tool is not appropriate for use within an ADE environment.


Do you stand by that paragraph?‑‑‑I do.


Would you accept, Mr Burridge, that when regard is had to the basis upon which BSWAT was deleted and your assessment of the SWS, that the rates of pay that you have - the rate of increase that you identify is, perhaps, exaggerated?‑‑‑Because of the way we've assessed it?


And it's comparison to BSWAT?‑‑‑Possibly.  Possibly.  I don't know what I would have got if I had applied it another way.


Well, it's possible, isn't it, that if the SWS had been applied correctly that it could have led to lower rates of pay?‑‑‑No, absolutely not.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


Why?  Why do you say that?‑‑‑Well, the simple logic of the SWS is that you've got to find a benchmark.  The benchmark is an able-bodied person and this is a pure assessment of speed.  I have people in my team with a range of intellectual disabilities - - -


Is that your view of the SWS, is it, it's a pure assessment of speed?‑‑‑Yes.


What's the basis for that view?‑‑‑Because that's my reading of what happened and practice.


Well, there's evidence before the Commission that the SWS takes into account quality as well as the time it takes for work to be performed?‑‑‑And do you have any idea how that would be applied, because I don't.


Plainly not.  It's also the case that in the assessment the evidence before the Commission is that it assessors the worker without the impact of supervision, are you aware of that?‑‑‑Yes.


Okay.  Well, I suggest to you that the rate of 83 per cent that you have quoted, stems from an incorrect application of the SWS, when compared with any valid wage assessment tool?‑‑‑Can you say that again?


I suggest to you that your rate of 83 per cent derives from an incorrect application of the SWS, measured against an invalid wages tool?‑‑‑It is a wages tool that was producing a wage that was very similar to the market.


VICE PRESIDENT HATCHER:  That's BSWAT you're talking about?‑‑‑Yes.


MR HARDING:  Now, you say, in your third statement, at the paragraph we've just been discussing, that notwithstanding, I think is the expression you used, the incorrect application of the SWS, you contend that - let me just get it, that it's not appropriate for use within an ADE environment?‑‑‑Correct.


That's because, you say, it's a speed test?‑‑‑Yes.  And other reasons.


What were the other reasons?‑‑‑Particularly in the piecemeal work that we deal with, that we - it's not beyond the realms of possibility that you're producing 10 different jobs on 10 different days that are totally different tasks.  So where you're talking about, "Where's your common task?  Where are you doing your common analysis on?"

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


Okay, but that's a conversation you haven't had with the SWS assessors, have you?‑‑‑No.  And it's a conversation they haven't had with me either.


No, I understand that.  But either way, whether it's their fault or your fault, or whatever, there hasn't been a conversation about how to assess the work, a proper conversation about how to assess the work that you provide to your employees in your enterprises, as between the SWS assessors and yourself?‑‑‑Well, I would also argue that what we have been measuring though is a fair - is fair from the point that they're basically talking about - our guys have - fine motor skill use is the one common element.


Are you going to answer my question?  The question was, there hasn't been a proper conversation between you - - -?‑‑‑I said no.


No, is that the evidence?  No, there hasn't been a proper conversation?‑‑‑I have not had a conversation - I said to you, I haven't had a conversation with the SWS assessors and they haven't had a conversation with me.


VICE PRESIDENT HATCHER:  When they come in who do they actually normally interact with?  You or somebody else?‑‑‑They come and see me.  We set up the task, they then - we provide - the support employee then spends time with them and they come and see me at the end of it and says how the assessment went.


When you say, "We set up the task", what does that mean?‑‑‑My supervisors.


They never ask you what the duties of the employees are?‑‑‑I've had one, last Friday, one person since I have - I started working at Centacare in March 2016, the first person that actually asked me about it was on Friday.  That would be about 120 assessments.


Will that lead to any change in the method of assessment?‑‑‑No, it was after she finished.


After she finished, right.  All right, thank you.


MR HARDING:  Mr Burridge, notwithstanding you support the proposal by ABI for a wage assessment tool?‑‑‑I do.


And have your read that tool?‑‑‑I have.

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


But you haven't, have you, applied it in your workplace?‑‑‑No, I haven't.


And you haven't costed it either?‑‑‑No, I haven't.


Well, so you don't have any specific information to offer the Commission as to how it might affect your costs or your workforce?‑‑‑No.  All I can say is that from what I've read of it, the assessment for my guys would go up and down, in general they would go down.


They would go down?‑‑‑In general.


And that's a desirable outcome?‑‑‑It's a desirable outcome if we want to stay in business.


Okay.  And you're mainly motivated, in that respect, aren't you, by achieving a common wages platform with other competitor ADEs?‑‑‑Correct.


Thank you, no further questions.


VICE PRESIDENT HATCHER:  Any re-examination?


MR ZEVARI:  No, your Honour.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Mr Burridge, you're excused and free to go.

<THE WITNESS WITHDREW��������������������������������������������������������� [12.57 PM]


MR ZEVARI:  I wonder if this is a convenient time, your Honour.


VICE PRESIDENT HATCHER:  Yes, it is.  So we'll adjourn now and resume at 2 pm.

LUNCHEON ADJOURNMENT�������������������������������������������������������� [12.57 PM]

RESUMED���������������������������������������������������������������������������������������������� [2.04 PM]

***������� BRADLEY RAYMOND BURRIDGE��������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Mr Zevari, who's the next witness?


MR ZEVARI:  Mr Dickens.




THE ASSOCIATE:  Please state your full name and address?


MR H DICKENS:  Heath Alexander Dickens.  The address on my statement is 76 Harley Crescent, Condell Park, New South Wales.

<HEATH ALEXANDER DICKENS, SWORN���������������������������������� [2.05 PM]

EXAMINATION-IN-CHIEF BY MR ZEVARI��������������������������������� [2.05 PM]


MR ZEVARI:  Mr Dickens, my name is Sina Zevari.  I appear in these proceedings on behalf of Australian Business Industrial and the New South Wales Business Chamber.  Is your name Heath Alexander Dickens?‑‑‑It is.


And is your address care of 76 Harley Crescent, Condell Park, New South Wales?‑‑‑It is.


Have you completed three statements in these proceedings, the first of which is dated 22 September 2017 that runs to 87 paragraphs?‑‑‑Yes.


The second of which is dated 21 November 2017 and runs to 22 paragraphs?‑‑‑Yes.


And the third and final which is dated 14 December 2017 and runs to 42 paragraphs and one annexure?‑‑‑Yes.


Have you got copies of those statements in front of you, Mr Dickens?‑‑‑I do.


Are there any corrections you wish to make to any of those statements?‑‑‑Not at this time, no.


Are those true and correct to the best of your knowledge?‑‑‑Yes.  Yes they are.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������������� XN MR ZEVARI


Your Honour, I seek to tender those statements.


VICE PRESIDENT HATCHER:  All right, the statement of Heath Alexander Dickens dated 22 September 2017 will be marked exhibit 31.



VICE PRESIDENT HATCHER:  The further witness statement of Heath Alexander Dickens dated 21 November 2017 will be marked exhibit 32.



VICE PRESIDENT HATCHER:  And then the statement of Heath Alexander Dickens dated 14 December 2017 will be marked exhibit 33.



MR ZEVARI:  Thank you, your Honour.



CROSS-EXAMINATION BY MR HARDING���������������������������������� [2.07 PM]


MR HARDING:  Yes.  Thank you, your Honour.


Mr Dickens, you're the business service operations manager at Disability Services Australia?‑‑‑Yes, that's right.


And the DSA, if I can use that expression to describe it, has a number of ADE sites as you say in paragraph 5 of your first statement?‑‑‑Yes.


Are they discrete businesses?‑‑‑What do you mean by discrete businesses?


Do they operate as one business or are they each individual ADEs?‑‑‑So we operate as four separate sites.  They come under the same management structure.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


All right, and there would be a manager at each one of those sites?‑‑‑Yes, that's right.


And do those managers report to you?‑‑‑On certain aspects of their role, they do.  They report to our general manager directly.


Which aspects do they report to you?‑‑‑So the - currently we're looking at workforce planning, the whole range of projects that they're undertaking.  And for financial purposes and financial reporting and production purposes and sales they report to the general manager.


Okay, so in broad terms on commercial matters they report to the general manager and in relation to workforce matters they report to you?‑‑‑Yes.


All right, and in terms of - well, you're not a qualified SWS assessor, are you?‑‑‑No.


What tool does DSA use?‑‑‑Greenacres'.


And you give some evidence about - you used to use BISWAT, is that right?‑‑‑Yes.


And you transferred to Greenacres after BISWAT became unavailable?‑‑‑Yes.


And your evidence in paragraph 37 is your wage bill went up by $350,000 per annum?‑‑‑That's my understanding, yes.


And what's the basis for your understanding?‑‑‑Some information that was provided by the previous manager who was responsible at that time.


And what information was that?‑‑‑That the wage bill went up by 350,000.


You didn't see a document or anything that set all that out?‑‑‑No, I didn't review that.  No.


That's just what he told you?‑‑‑She.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING




All right, now you give some evidence about the kinds of activities that your workers perform at paragraph 22 of your first statement.  And in paragraph 27 you refer to "the typical work performed at our Mascot site" - sorry, at 24 you refer to the work you perform at the Mascot site and then you describe that work in 27.  That's accurate isn't it?‑‑‑Yes.


And that's work you do for airlines?‑‑‑that particular job is, yes.


Yes, and you divide the steps up into stage 1, stage 2.  Stage 1, all those items 1 to 6 are done by one employee and then the employee passes the envelope to the next person who does the things in one to six for stage 2.  Is that right?‑‑‑Yes.


And you would describe, would you, the work in one to six as filling, I suppose, in terms of the packing work that they do?‑‑‑Well, I haven't used that word but, yes, that's one way you could describe it.


That's accurate, isn't it?‑‑‑Yes.


And can I just ask about stage 2, "Check the dirty cutlery and replace with clean".  Now that's a function that's required for the purposes of your contract with the airline, isn't it?‑‑‑Yes, on some jobs.  Yes.


Yes, and so ultimately the stages of the task relate to the requirements of your airline customers?‑‑‑Yes.


Yes?‑‑‑Yes, in terms of work we undertake for the - for an airline customer.  Yes.


In terms of the kinds of end product that they want to have available for their airlines?‑‑‑For their airlines, yes.


Yes, so for instance stage 1, the placing of the salt and pepper and one toothpick into a satchel or into an envelope, whatever it is, that's how the airline wants it presented so that they can hand it over to their customers?‑‑‑Yes.  Well, that's one way of describing it.  Yes.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


That's an accurate way of describing it, isn't it?‑‑‑That's one way of describing it I would have thought, yes.


Is it accurate?‑‑‑Yes, but it's not discretely and of itself.  It may form a broad - bigger part of - sorry, a smaller part of a broader pack, yes.


Okay, so you might have a larger pack comprising a number of elements and one worker might pack one of those elements that form then a larger pack that's ultimately handed over to the customer in the airline?‑‑‑Yes.  Yes.


But in the end how it's presented is based on what the airlines need you to do?‑‑‑Yes.


Right, okay, and you give some evidence at paragraph 33 of your statement about the amount of revenue generated from business customers in the last financial year and that's 8.8 million?‑‑‑Mm‑hm.


And I think your annual report says that that's up 1.8 million from the year before.  Is that accurate?‑‑‑Yes, from my recollection.  Yes, I don't have the annual report in front of me.


No.  What I'm putting to you is it corresponds with your recollection?‑‑‑Sure.


Now if you go to paragraph 44 of your statement and you say you've done some initial modelling on the WVCT and you say that it's going to raise your costs by 10 to 15 per cent?‑‑‑Potentially.


All right?‑‑‑Potentially is the word I've used in the statement.


I'm sorry?‑‑‑Potentially is the word that I've used in my statement.


Yes, well what are the elements that affect that potentiality?‑‑‑What do you mean by elements?


You say it's potential.  What's the basis for it being potential?‑‑‑So we select a sample of employees, perform what we would - how we would think they would fit into that classification structure to gauge and get some understanding of what the impact would be.  It's based on a sample.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


How big is the sample?‑‑‑From memory I think it was 10 to 15 employees.


Out of a total workforce of?‑‑‑At that particular site about 200.  Yes.


Okay, and overall the workforce size is?‑‑‑Five - we have got just under 500 employees, yes.


So 10 to 15 out of a total workforce of 500 in all your sites?‑‑‑Yes, we picked what we thought was a representative sample.  Yes.


And you haven't attached that modelling to your statement?‑‑‑No.  No.


But you haven't ever used the SWS for wage assessment, have you?‑‑‑For any of our employees? Yes, we have.


Which ones?‑‑‑Which employees?


Well, not necessarily their names but what are the characteristics that have led you to use the SWS for them?‑‑‑An example would be we have people who work - we have flow wrap machines which construct and flow wrap cutlery items.  So we have some people who run those line machines and they make - might make small adjustments, changes to it, an element of quality checking.  We have some employees who perform that task who are assessed under SWS.  We have a person who drives a forklift who's assessed under the SWS, as an example.


Why are they assessed under the SWS and everybody else is assessed under Greenacres?‑‑‑Well, under the Greenacres tool there's a trigger point which would then bring on the case for an SWS assessment.


So these employees, they would be at 55 per cent or greater of the amount of - - -?‑‑‑Under the Greenacres tool, yes.  Yes.


Yes, and so they're assessed under the SWS?‑‑‑Yes.


Now if I can hand up - you might have a copy, I'm not sure, of the tool that you're referring to at paragraph 44.  Do you have?‑‑‑No, I don't.  No.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


I'm not sure we have another copy to hand up, your Honours and Commissioner.  We do.


Now this is - the copy that I have has got on the first page "Draft determination".  Have you got that?‑‑‑Mm‑hm.


And then some cross outs after that before we get to - and this is page 2 about halfway down, "Schedule 1B.  Classification structure".  Have you got that, yes?‑‑‑(No audible reply)


Now if I could take you to page 3 of - sorry, page 4 of that document part 3 headed "Rate of pay"?‑‑‑This is page 4, sorry?  Yes?


Yes, page 4?‑‑‑Yes.


At the top of page 3 "Rate of pay"?‑‑‑Yes.


Do you see that?‑‑‑Yes.


And there's a table that sets out the percentages of the ordinary rate of pay.  Do you see that?‑‑‑Yes I do.


And you would accept, would you not, that unlike the Greenacres tool this tool would pay a fixed percentage of wages at levels C3 and above.  Yes?‑‑‑Yes.


Unlike the Greenacres tool which would assess under the SWS?‑‑‑Yes.


And you'd accept that's inconsistent, wouldn't you?‑‑‑Well, what do you mean inconsistent?


Under the Greenacres tool you utilised the SWS?‑‑‑Mm‑hm.


Yet you support this tool which doesn't utilise it at all.  That's inconsistent isn't it?‑‑‑I don't see why that's inconsistent.


Well, look at C3?‑‑‑Yes.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


55 per cent, and the next level is C4 and then to get to level D you have to be reclassified?‑‑‑Right.


And it then goes 70, 80, 90 and a hundred per cent?‑‑‑Yes.


In increments thereof.  Yes?‑‑‑Yes.


Whereas an employee under the Greenacres tool who's at 55 per cent is entitled to be assessed under the SWS, aren't they?‑‑‑Under the Greenacres tool they are.




VICE PRESIDENT HATCHER:  Was it 55 or 45?  I thought it was 45.


MR HARDING:  45 under the Flagstaff tool, your Honour.  55 under the Greenacres.




MR HARDING:  In which case - - -?‑‑‑I think they're different ways of assessing, if that's what you mean.


Yes, they are?‑‑‑Yes.


One is assessing productive output under the SWS and this has a classification system.  Yes?‑‑‑Yes.


Now you accept the Greenacres system is fair, do you?  Is that your evidence?‑‑‑Yes.  Yes, we use the tool.  It's a sanctioned tool under the award, yes.


Yes, well why is it fair to have the SWS for those above 55 per cent under the Greenacres tool but not apply that same standard to those who would be covered by this tool if it was accepted by the Commission?‑‑‑I haven't assessed it on a matter of fairness.  It's at the moment a tool that we use and this is a different proposal.  I haven't beat it through that length.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


What's the basis of you support for this tool then?‑‑‑I'm attracted to the principles that underlie it.  For me it's consistent with the way that most work is valued or classified under awards, just from my experience.  So I find - for me I find that that underlying principles of the tool match how most of industry or awards operate.  That's what I'm attracted to with the classification.


That's the basis upon which you think it would be a fair tool?‑‑‑Yes.


Despite the fact that - - -


VICE PRESIDENT HATCHER:  Mr Dickens, is your first preference to stay on the Greenacres tool or to go with the ABI‑developed tool?‑‑‑We have - I don't have a particularly strong preference for either.  It's - I think the principles are sound under both but, yes, to answer your question I don't have a strong preference for either.  I think both - me - what I would consider to be a relatively accurate way of assessing wages.


All right.  Thank you.


MR HARDING:  But it follows from your evidence about your modelling that you would accept that there would be a wage increase if you adopted the ABI tool, yes?‑‑‑Mm‑hm.


And you consider that that wage increase is sustainable so far as your business is concerned?‑‑‑Given the volume that we've looked at initially.


Yes?‑‑‑And again it's based on initial modelling, yes.


You haven't done your modelling of the SWS to your whole workforce though, have you?‑‑‑No, we - no.


No?‑‑‑Similar basis.  Initial - a small sample.


VICE PRESIDENT HATCHER:  Was it the same sample for both purposes?  Like was it one - - -?‑‑‑The same.  It was the same demographics, yes.  It was the same of what we considered to be a representative sample.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


So you picked the sample, you tried it under SWS and then you tried it under the ABI model?‑‑‑Yes, to try to give some kind of comparative assessment.  Yes.


And how did you undertake the SWS assessment on that sample?  Did you have access to an assessor or how did that work?‑‑‑I'm not sure if it was - we obtained some initial results from a trial that was performed and we tried to then match what we considered to be a representative sample of the same people.  Yes.


All right.  Thank you.


MR HARDING:  That was an internal assessment, was it?‑‑‑No, it was an assessment that was performed as part of a trial.


Are you referring to the ARDT report, are you?‑‑‑Not the report, the process that was undertaken at that time.  There were some discussions at that time of relative outcomes but it was across the table discussion.  It wasn't anything that was in - provided to us in terms of analysis of the wage outcomes.


Okay, so I thought your answer to his Honour was though you extrapolated that information based on a sample of employees that you had available?‑‑‑As best we could, yes.


As best you could, using an assessment, a discrete assessment?  Is that how you did it or did you just utilise the information you had available?‑‑‑With the information we had at hand at that time, yes.


Okay, so it wasn't an SWS assessment using an SWS assessor?‑‑‑It was, yes.


It was?‑‑‑Yes.


On your internal sample?‑‑‑I think you just maybe need to re‑-explain the question to me.


I'm trying to - - -?‑‑‑Because I think I'm kind of jumping across the two different things that we did.


What I'm trying to do is - - -?‑‑‑Well, it feels like that.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


Is it?  Okay, well, what I'm trying to establish is how you did your SWS trial.  Did you utilise information you already had or did you conduct a discrete assessment using an SWS - - -?‑‑‑Information we already had.  Yes.


All right, now you're aware, aren't you, that at least for those employees who haven't transitioned to the NDIS that they're assessed for government support under what are called DMI levels?‑‑‑Yes.


How much of your workforce has transitioned to the NDIS?‑‑‑At the moment - we've gone through stages because of the different sites we have.  So at some sites we're at 80, 90 per cent transitioning and our last site at Mascot which is roughly half way through the transition.




And there's been some evidence given that the level of individual support provided with the NDIS tends to correspond with the DMI level that had been applied to the workforce?‑‑‑For existing employees, yes.


For existing employees.  Is that accurate?‑‑‑Yes.


Can I hand you up a document?  And, your Honour, this answers the question you raised earlier.


Now I can disclose to you that we've downloaded this off the Net so what this purports to be is the guidelines for DMI assessment.  Are you familiar with these?‑‑‑I haven't read them but I'm familiar with the guidelines at DMI, yes.


All right?‑‑‑I haven't read what you've downloaded, but yes.


I'll take you to parts of it?‑‑‑Sure.


And if you need some time to read them you can just let me know?‑‑‑Sure.


All right, now page 4, the page numbers are on the bottom left‑hand side?‑‑‑Yes.  Yes.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


What this tells us is what the DMI is intended to capture is disability related employment support needs and it does so by reference to the things set out in the dot points.  Does that correspond with your understanding?‑‑‑Yes.


And there's some evidence been given that how that works in practice is that the system is online.  Is that accurate?‑‑‑Yes.


And some questions are answered by the ADE pertaining to each individual employee?‑‑‑Yes.


And those questions then go up into the ether and a DMI assessment comes back from the Department.  Is that right?‑‑‑Yes.


And if you can skip through to page 17 these - well, if you need to have a read of this for a moment, please do?‑‑‑I'm familiar with it but if you want to ask me a question, then I can get a specific answer.


Okay, you're familiar with it.  I will.  So each of these identify a head of evidence that the ADE is required to collect?‑‑‑Sure.  Yes.


And they do so by reference to, in the case of social behavioural assistance, an assessment of the employee's abilities in respect of the dot points that are set out in the first box.  Yes?‑‑‑Yes.


And these relate to their behaviour at work?‑‑‑Yes.


And the vocational assistance relates to again their skills and attitudes at work?‑‑‑Yes.


And then on the second page?‑‑‑Page 18?


Yes, sorry, page 18.  That's right.  There's a category of workplace environment assistance.  Again this deals with what assistance may be required to assess or modify the workplace or change the job, that's the job design category.  That's accurate?‑‑‑Yes.


And a selection of adaptive equipment that may or may not be required by the employee?‑‑‑Yes.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


Yes, and on the basis of the answers that are given to the questions that are set out in the website, a level of DMI assistance is determined range - yes?‑‑‑Yes.


Ranging from a high level at four and a low level at one?‑‑‑Yes.


Now if I can take you to the draft determination and you'll see on page 6 there are classification descriptors and you'll see for instance at 8.1B there's a category called personal support, and we'll discuss that in a minute, yes, and that goes all the way through all the classification descriptors up to level D.  Yes?‑‑‑(No audible reply)


And then personal support is defined on page 8 as:


The care and support of an employee with a disability in the workplace provided by a trainer or a supervisor.


And then that personal support takes those manifestations in B and C and there's a correspondence, isn't there, between the personal support referred to in B.1 and the personal support that's assessed for the purposes of DMI.  Do you agree with that?‑‑‑Sorry, can you ask me that again?


There's a - - -?‑‑‑I was actually just pondering something that I just read, sorry.


There's a correspondence, isn't there, between the personal support that's described in B.1 of the draft order and the personal support that's provided in the assessment for DMI assistance?‑‑‑In terminology there's a correspondence that I can see, yes.


Well, there's an actual correspondence, isn't it?‑‑‑Well, it's terminology.  I mean one's for the purposes of wage assessment and the other's for the purposes of assessing their support needs.


Yes.  So you get a level of funding for the provision of support needs to your disabled workers?‑‑‑Yes.


And this would bring into wage assessment a similar assessment?‑‑‑If it's relevant to their work performance.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


Yes, well, they're both relevant to work performance, aren't they, because for the purpose of DMI you're making an assessment of what the worker needs in order to work at your ADE?‑‑‑Yes.  It would appear that you're making an assumption that the funding we get is compensation or a subsidy or - I'm not quite sure what you're - - -


No, I'm making that assumption at all.  I'm just asking you about the connection between the two kinds of personal support.  And it's accurate, isn't it, that DMI assesses what a worker might need to be able to work in your ADE, and so does the level of personal support described in this definition?‑‑‑Yes.  So one's in relation to support needs and one's in relation to their work performance.


Yes.  Isn't your suggestion that there's a connection between support on the one hand and work performance on the other?‑‑‑No, that's your suggestion.  That's what you just were saying to me.


What connection is there, why is personal support relevant to wage assessment on your argument?‑‑‑Because if that's something that is - not sure you've read my statements, as per one part of one of my statements, that it refers to an input to help somebody achieve a level of performance, work performance.  If that's being assessed under a wage assessment process, my view is it's relevant.


Okay, but you would accept that that input is also taken into account in the DMI funding that the ADE receives as well?‑‑‑It's - yes, it's recorded as for funding purposes, yes.


All right.  It follows, doesn't it, from the classification descriptions in the draft tool that the higher the level of the support required by the employee, the lower they will be in the classification table that's set out on page 4?‑‑‑In a broad sense, yes.


Yes?‑‑‑If it relates to their work output and their work performance, yes.


Yes, well, look at 8.1, "Continuously requires personal support".  So if they continuously require personal support, that is one of the criteria that would put them in level 8?‑‑‑Mm-hm.



***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Mr Harding, I'm a bit lost here.  Were you putting to the witness that the classification descriptors had borrowed terminology from the DMI document?


MR HARDING:  No.  I was putting it in terms of a correspondence between - - -




MR HARDING:  And in B, 8.3B "Requires personal support" is the criterion.  So the point of distinction here is that the lower level requires continuous personal support and level B just simply requires personal support?‑‑‑Yes.


That's what it says?‑‑‑That's what it says, yes.


Hard to understand how you distinguish between those two, isn't it?‑‑‑I don't think so but - - -


Okay?‑‑‑Everybody's different.


Everybody is different, yes, that's right.  Everybody is different.


VICE PRESIDENT HATCHER:  Mr Dickens, how would you apply that in practice?  What's the difference between requiring personal support and requiring a high level of - continuously requires personal support?‑‑‑Well, I imagine if it's a comparison between the two, somebody requires continuous support, that's an ongoing and a pervasive level of support for that person, as opposed to somebody who may require personal support but it's not continuous.  I know that sounds a bit - (indistinct) the word is but that's a literal interpretation of what's in the document.


COMMISSIONER CAMBRIDGE:  So if you translate it there into something we actually saw at Mascot?‑‑‑Yes.


The chap that we observed doing the Tim Tams seemed to have a person there with him the whole time?‑‑‑Yes, yes.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


We saw other people who were doing other tasks, folding things and putting the forks in.  Occasionally a person would come along and redirect them if they had to?‑‑‑Yes, yes, and that would be the difference.  That's my understanding between the two.


Yes, right?‑‑‑Yes.


MR HARDING:  What's the difference between "requires personal support" in level BC, and "occasionally requires personal support" in level CC on your understanding?‑‑‑Again a matter of degrees.


How would you assess it?‑‑‑So if I'm looking at a person, I'm trying to make an assessment, I'm taking into consideration that person and we would - we would look at it as a matter of degree and can be an occasion in any assessment process, whether it's this or another, where you're doing it, do they continuously require it, no.  If you move to the next level, do they require it or is it occasional, and you make the best fit assessment for that person.


You would accept that different people might have different assessments though, wouldn't you?‑‑‑Absolutely, yes.


Yes, absolutely.  Can you just explain to me then, in the case of someone who's at level A who continuously requires personal support, that would be someone who had fairly significant disability and perhaps low work capacity.  Would that be a reasonable description?‑‑‑Somebody who continuously requires personal support.


Yes?‑‑‑For the most part, yes, but everyone - as we just agreed, everyone's different.


Everyone's different?‑‑‑You'd have to make the assessment on the person in question.


Would you accept that that person's more likely to be on DMI level 4?‑‑‑Possibility but there's - from my last count there's 120 different items or around about in a DMI.  This is one area so - very hard to - - -


Do you know the basis upon which the continuous requirement for personal support - and I accept that it's only one of the criteria in 8.1 - translates into a particular percentage of the ordinary rates set out in the table?  How is that valued, do you know?‑‑‑I couldn't give you - - -


You don't know?‑‑‑No.  Again it's one area.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


You have given some evidence from paragraph 47 that you've managed both open employment services and supported employment services?‑‑‑Yes, that's right.


And is it the case that when you were managing the open employment service you did so as an employee as Centracare?‑‑‑Of Centracare?


Sorry, your current employer?‑‑‑At a particular time, yes.


Yes, and at that time DSA had an open employment contract, didn't they?‑‑‑Yes.


Which they lost?‑‑‑Yes.


Because they couldn't place enough open employees in employment?‑‑‑Star ratings were a fairly complex matter.  It's one crude way of saying it but they're a very complex matter.


Is it an accurate way of saying it?‑‑‑There was a tender process that was undertaken, part of which star ratings were taken into consideration, and part of that was about how many people you placed into employment.


And - - -?‑‑‑So it's a very - to answer your question, the question you asked - the subject you asked me about, it was a very small consideration, yes.


You tendered for that service to the Commonwealth, didn't you?‑‑‑Yes.


And the Commonwealth didn't renew your contract?‑‑‑That's correct.


And the star rating you referred to, one of the criteria is the numbers of people you had been able to place in open employment successfully?‑‑‑Is one criteria, yes.


How long did you do that for?‑‑‑Did I do what for?


Manage the open employment service that - - -?‑‑‑There's a period of time for - at that time it was, I think, between six and 12 months, I was also performing another role at the same time.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


So your open employment experience is six to 12 months?‑‑‑No, I've previously managed open employment services before - well, employment services, a part of which was an open employment stream before DSA, yes.


Before DSA.  When was that?‑‑‑Well, I've been at DSA for 15 years so before then.


So quite a long time ago?‑‑‑Yes.


All right.  And you disagree - you say in 53 of your statement that ADE employment is modified to a far greater extent?‑‑‑Yes.


And that's based on your personal experience, isn't it?‑‑‑Yes, both - and obviously the report that I attached - those observations from the Department as well.


Yes.  I think you go so far, don't you, in one of your statements, perhaps the third one, to say in paragraph 22 that in open employment jobs are hardly modified or redesigned at all?‑‑‑In the whole context of open employment, yes.


And what is your basis for that?‑‑‑Experience with employers and also again (indistinct) it's stated pretty clearly in the Department's report.


Well - - -?‑‑‑Because - I can expand if you'd like me to.


No, I don't want you to.


VICE PRESIDENT HATCHER:  Mr Harding, what paragraph of the third statement does that reference?


MR HARDING:  Twelve.




MR HARDING:  Can I take you to - just bear with me for a moment.  I'm taking the witness to annexure I of Mr Cain's statement, his second statement, that has a document titled "Evaluation of Disability Employment Services 2010-2013 Final Report"?‑‑‑So it's I.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


Yes.  The one that I have, it's the first annexure but I can't guarantee that that's the case with the file that you've got?‑‑‑No.  Tab 13.  The numbering stops after three so bear with me.  Here we go.  As luck would have it I went straight to it.


Well, that's excellent news?‑‑‑Fortuitous, save us all time.  Hang on, I've lost it.  There it is, yes.


It's a very large report that analyses what it says, "Disability Employment Services", and you'd accept, wouldn't you, that the Commonwealth operates a scheme that places people with disabilities in open employment through what's called the Disability Employment Service?‑‑‑Yes.


As well as through Centrelink?‑‑‑What do you mean by "through Centrelink"?


Well, there can be a placement through Centrelink, can't there, into open employment?‑‑‑No, no, no.  Centrelink's a stage before, so they don't actually provide procurement services as such.


All right.  So your evidence is that it's the Disability Employment Service that's the primary?‑‑‑Yes, that's the agency that actually puts - yes, placing people, yes.


Well, if you can skip through the very large document to page 122.  The page numbers are on the bottom right side.  Actually before you get to page 122, if you could start with 121 for context.  This is a section dealing with the - well, the heading is "Appropriate fee lading for participants with moderate intellectual disabilities", but it goes in through a fair history of the employment outcomes for those with intellectual disabilities before we get to page 122, and tell me if you want to read it?‑‑‑Is the context important or - - -


Well, only so far as to say I pointed it out to you?‑‑‑Just give me five seconds to read this first - - -


Yes, of course?‑‑‑Before I move page.  Okay, I've scanned it.


Good.  You tell me if you need some more time?‑‑‑I'll go back if I need to.


All right.  Then page 122.  I'm particularly interested in the second paragraph?‑‑‑Mm-hm.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


That tells us, doesn't it, that there are - the literature suggests there are aid strategies necessary for people with significant intellectual disability to succeed in open employment and there are a range of things that would be provided to those individuals that you wouldn't necessarily expect to see with someone without a disability.  Would that be a fair statement?‑‑‑That would be fair in the context of what I've read so far, yes.


Then if you skip down over the paragraph - over the next paragraph to the fourth and both of those - the paragraphs that follow, that one and the last paragraph, emphasise the importance of customisation, don't they?‑‑‑Sorry, which - the very bottom paragraph are you talking about?


The paragraph before the penultimate starts:


The importance of job customisation is also emphasised -


?‑‑‑Sure, yes.


Do you see that?‑‑‑Yes.


It's premised on the inability of those with intellectual disabilities to fill advertised vacancies or observed that it's rare?


VICE PRESIDENT HATCHER:  Well, the paper's talking about people with significant or more severe intellectual disabilities, not intellectual disabilities generally isn't it?


MR HARDING:  No, it says severe intellectual disabilities, your Honour.


VICE PRESIDENT HATCHER:  That's what I meant but this is not talking about anybody with an intellectual disability in open employment but it's people in the more significant or severe category, is it not?


MR HARDING:  Well, I suppose that's the language that's utilised - it's a little unclear, your Honour, I think because the heading is those with moderate intellectual disabilities.



***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


MR HARDING:  And the language that's utilised is those with more severe intellectual disabilities.  It's not entirely clear but what it does seem to be emphasising is the importance of job customisation.


VICE PRESIDENT HATCHER:  Yes.  Mr Dickens, you're experienced with open employment.  Did that involve anybody in open employment with more severe intellectual disabilities or significant intellectual disabilities?‑‑‑It's somewhat a subjective term, severe.


Yes?‑‑‑My experience with placing people with an intellectual disability into open employment, on the broad range of disabilities that I deal with at the moment in supported employment, it was nearly impossible to place someone with a severe intellectual disability into open employment.  It was far more of a tenable prospect for someone with a moderate intellectual disability.  I mean this is - within the disability field severe intellectual disability can mean one thing to me and a different thing to yourself so it's very hard to kind of categorise it in the context of this.  I understand what this is saying, we're talking about a principle how you would accommodate someone with more support needs as opposed to - severe as opposed to moderate but yes, severe intellectual disability can be very different for different people with that disability.


If you look at the eight strategies referred to in that paragraph above?‑‑‑Yes.


Is there typically the sort of financial support available to provide somebody with those strategies, for example a specialist job coach in open employment?‑‑‑You say typically available.


Yes or - - -?‑‑‑Not in my experience typically.  You can apply for and in cases you can be able to provide that. Some specialist open employment providers as in DES providers can do that.  It really depends on the employer and whether an employer is prepared to have that impost in their workplace, because it can mean an extra person, it can mean additional space, additional resources.


Right, thank you.


MR HARDING:  Thank you.  In your third statement, we were looking at paragraph 12, but in paragraph 7 of your statement you refer to paragraph 228 of Mr Cain's second statement?‑‑‑Hang on, sorry, are you talking about my third or second statement?

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


I'm talking about your third?‑‑‑Yes, sorry, where are we up to?


Well, have you got your third statement there?‑‑‑I have, yes.  Paragraph 7, yes.


Yes, paragraph 7.  In that you were responding to a paragraph of Mr Cain's second statement?‑‑‑Yes.


Which is paragraph 228 and you refer to a footnote 44 from his statement.  You see that?‑‑‑Yes.


You don't address the evidence that he gives in 228 other than a footnote and he extracts a statement from the SWS evaluation.  Are you aware of that evaluation?‑‑‑Um - - -


You responded to the footnote, I'm just assuming that you might be aware of the valuation?‑‑‑I may have read it but I was referring specifically in my statement to the footnote, yes.


That quote from the evaluation said that:


None of the employees interviewed had sought out the SWS, most were approached for employment on the basis that they were able to create a position that could be tailored to the needs of a person with a disability seeking employment.  It was only through the creation of such a position as a result of the needs of the individual that employees became aware of the SWS.


That doesn't seem to correspond with your experience. Is that accurate?‑‑‑I'm not sure what you're saying.


Well - - -


VICE PRESIDENT HATCHER:  I think as a matter of fairness, Mr Harding, you might have to show Mr Dickens the paragraph so he can understand your point.


MR HARDING:  Have you got a copy of the - have you got that big folder there in front of you?‑‑‑I've got - at the beginning of this there's a thing with all the statements at the beginning.  Are we finished here by the way, I don't want to my place.


I think we have?‑‑‑Yes.  So which statement?

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


It's headed, "Further statement of Paul Cain"?‑‑‑Yes.  41 page statement.


Yes, it is?‑‑‑Yes, okay, so where are we up to?


Just go to paragraph 228 which is on page 37 of those 41 pages?‑‑‑Okay.


As his Honour said as a matter of fairness I should let you read that?‑‑‑Sure.  Yes.


You've read that.  That seems to suggest an experience that's contrary to your own.  Do you accept that?‑‑‑No, I actually state that it's similar to my own in my statement.


It's similar in the - - -?‑‑‑That one employee.  So what I - - -


Well just the quote, don't worry about the footnote for the purpose - for the moment.  I'm only talking about - - -?‑‑‑The paragraph above it?


Yes?‑‑‑I apologise.  Give me two seconds.  Yes, I'm not - I'm not sure how many employers they approached.  It says none of the employers so if it was three or one or two.


I'm just asking you, that doesn't correspond with your experience.  Is that right?‑‑‑I actually don't think you can draw the conclusion based on just that one paragraph.  This is talking about a sample of people they approached in reference to the use of SWS.


VICE PRESIDENT HATCHER:  Mr Dickens, just take it as read.  It's being put to you that that's not consistent with your own personal experience of open employment in the way you've described it?‑‑‑I'm not understanding that, I'm sorry.  I'm happy to accept that if that's how - - -


No, no.  What you're being asked is - well let me ask this question?‑‑‑Sure.


Just read the bit that begins with the quote, "None of the employees interviewed", down to "attachment D"?‑‑‑Yes.


So you understand what that says?‑‑‑Yes.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


Is that consistent or inconsistent with your personal experience of the way open employment positions are established?‑‑‑No, it's consistent with my experience.  This is talking about and it's in paragraphs, their knowledge of employers awareness and knowledge of SWS. So this particular paragraph is speaking to their awareness of the SWS.


MR HARDING:  Yes?‑‑‑Yes, well that's consistent - most employers - when you approach an employer and you say I have a person that might be able to - particularly, I'll take you through an example.  You may have seen a job advertisement, you have a candidate, you call the employer.  That might have been their first contact with a DES provider or anyone with a disability at any point. So at that point there's no guarantee and quite often they're not aware of the SWS.


But it goes on though doesn't it, to speak about the need to tailor the job to the needs of the person with the disability seeking employment?‑‑‑Yes, that can happen.


Well it seems to be suggesting that that was the common experience?‑‑‑I draw that inference from this at all.  This is actually in the context - if you read it, it's in the context of employers awareness and knowledge of SWS.  It actually flows through to say that it then opened the conversation about the SWS.


It goes onto say:


It was only through the creation of such a position -


Well it's implying the creation of a position for the individual with the disability, isn't it?‑‑‑Yes.




as a result of the needs of the individual that employees became of the SWS -


which implies that there's going to be a conversation with an employer about creating a new position for a person with an intellectual disability or disability that they wouldn't have otherwise known about?‑‑‑Yes.  In my statement I say a greater extent, I don't say it doesn't happen at all.

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


VICE PRESIDENT HATCHER:  Mr Dickens, is this right, your experience was mainly associated with trying to place disabled persons in advertised vacancies?  Is that - - -?‑‑‑That's one of the main ways you do it.  You can develop relationships with employers where you have a candidate with certain skills and you know from your relationship with an existing employer that they may be a fit for their business.  But one of the major ways that DES operate is to source vacancies and match. So it's very typical to get on Seek or in a newspaper, let's have a look at what jobs we've got, and it may facilitate the person's placement if you're able to help the employer, in this instance, talk about - there's a thing called SWS, we can maybe - we can tailor part of the job for you.  My statement that you refer to here, I saw far greater extent, I don't say it doesn't happen at all.  It does happen in open employment but I think customisation and tailoring jobs happens to a far greater extent in supported employment than it does happen in open.  I'm not saying it doesn't happen in open employment.


MR HARDING:  No, no, I understand that's what you're saying. I  understand it's not that you're saying it's non-existent but you are in answer to his Honour's question, you are saying that your experience was mainly concerned with placing people in an advertised position?‑‑‑that's the predominant way people are placed, yes, and that's backed up by the government (indistinct) - - -


Where a need is identified?‑‑‑Yes.


And you just seek to have a person with a disability placed to fill that need?‑‑‑Yes.


Would it follow that it may be less likely in that scenario that you might need to customer because you're matching the need identified to an individual you have in mind to fill that need?‑‑‑Yes, it depends on the vacancy, it depends on the candidate, yes.


Now, if I can take you to your second statement which is headed, "Further witness statement of Heath Dickens", and there you refer to your experience with the SWS assessment.  Is that accurate?‑‑‑Yes.


The complaint that you make is that the SWS assessment was done on the basis of someone who had a disability.  I mean that was the benchmark that was utilised?‑‑‑I wouldn't class it as a complaint.  It was an observation.  It's a description of what occurred.


You say in 17 of your statement:

***������� HEATH ALEXANDER DICKENS�������������������������������������������������������������������������������������������� XXN MR HARDING


This is a serious flaw in the implementation of the use of the SWS.




And the practice of using a co-worker to set the benchmark in open employment is the predominant benchmarking process.


So are you saying by that that this was simply an error in the assessment rather than an error in the design of the SWS?‑‑‑A bit of both probably, yes.


Well, you understand that the SWS assessment's benchmarked against the person who doesn't have a disability that is being assessed, don't you?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Mr Harding, is that consistent with Mr MacFarlane's evidence?  I thought he was anxious to emphasise that it's not necessarily a disabled or non-disabled employee, it's simply somebody who meets a level of acceptability determined by the employer, which could be a disabled person.


MR HARDING:  Well, that's why I put the question the way that I did, that is without the disability that the person being assessed has.




MR HARDING:  Thank you, no further questions.


VICE PRESIDENT HATCHER:  Any re-examination, Mr Zevari?

RE-EXAMINATION BY MR ZEVARI���������������������������������������������� [3.00 PM]


MR ZEVARI:  Yes.  Mr Dickens, you I believe in response to a question from his Honour the presiding member made reference to - were responding to questions pertaining to severe intellectual disability and you know that it was some suggestive term.  Can you explain what you mean by severe intellectual disability?‑‑‑Somebody who requires significant support.  It might be a person who's non-verbal, a person who requires almost hand - well it's a technique in employment support called hand over hand to help them to perform a particular task.

***������� HEATH ALEXANDER DICKENS����������������������������������������������������������������������������������������������� RXN MR ZEVARI


COMMISSIONER CAMBRIDGE:  Mr Zevari the actual term used in the document was a person with a more severe intellectual disability.


MR ZEVARI:  More severe.


COMMISSIONER CAMBRIDGE:  I'm not sure that's the same thing.


MR ZEVARI:  Yes.  In relation to that category, Mr Dickens, you talked about it being in your experience harder to employ people with a more severe intellectual disability in open employment.  Why is that the case?‑‑‑With the employers that I've dealt with in open employment, the majority if not all are very limited ability to support people on a continual basis, either from a resource or an expertise perspective. It's not uncommon for an employer to say look, as long as they can do this particular job and don't require too much support I'm happy to give them a go.  If it i's somebody who requires specialist knowledge and specialist support some - well a lot of employers are reluctant to place that person because it's an impost on them and it's not really tenable in their employment environment.


How does that compare to your experience in supported employment?‑‑‑We exist to employ those people.


Thank you, nothing further, your Honour.




COMMISSIONER CAMBRIDGE:  Mr Dickens, you mentioned 120 items in a DMI assessment or something. Are you referring to the sort of pro forma - - -?‑‑‑Yes.  Look, I have to say it's been a long time since I performed a DMI assessment but I used to manage that process and so what you have is a range of domains and then subcategories within those domains.


Yes, and a whole series of answers that have to be provided?‑‑‑Yes.


And you go online to do that?‑‑‑Yes.  It's quite - - -

***������� HEATH ALEXANDER DICKENS����������������������������������������������������������������������������������������������� RXN MR ZEVARI


Then you supplement that with a variety of evidentiary material?‑‑‑Almost - yes, for somebody who's high support you'd have to have a series of daily observations because that was one of the rating systems for a DMI.  So if you were saying somebody required daily and constant and ongoing supervision, you would have to provide a range of evidence on a daily basis to prove that you were actually doing that.


Your recollection there's about 120 separate pieces of information going - - -?‑‑‑Yes, that's when you break it down into the subcategories and the rating systems and all of that, yes.


All right, thank you.


VICE PRESIDENT HATCHER:  Anything arising out of that?


MR HARDING:  No, your Honour, but I did neglect to tender those DMI guidelines.


VICE PRESIDENT HATCHER:  Right.  Nothing arising out of that?  Mr Christodoulou?


MR CHRISTODOULOU:  Just very quickly, your Honour, on the DMI level, can I just - - -


VICE PRESIDENT HATCHER:  Well, I'm not sure you get a go, Mr Christodoulou.


MR HARDING:  You anticipated my objection, your Honour.


VICE PRESIDENT HATCHER:  This is an ABI witness so I don't think you get to cross-examine or re-examine.


MR HARDING:  It was a good try though.


VICE PRESIDENT HATCHER:  Mr Dickens, you're excused and you're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW����������������������������������������������������������� [3.04 PM]


The document entitled Disability Maintenance Instrument Guidelines version 6.1, effective from 1 July 2013, will be marked exhibit 34.

***������� HEATH ALEXANDER DICKENS����������������������������������������������������������������������������������������������� RXN MR ZEVARI



Now, Mr Thompson in Canberra, you've I think sent through a copy of the Disability Maintenance Instrument Pro Forma.


MR THOMPSON:  That's right.


VICE PRESIDENT HATCHER:  We'll just provide a copy to the parties.  I'll let them have a chance to look at it and at some stage if there's no objection, we'll mark that as an exhibit.


MR HARDING:  Thank you, your Honour.


MR ZEVARI:  Your Honour, just before we call the final witness, just for completeness, Mr Dickens had one annexure to one of those statements.  That is in fact the same annexure that Mr Christodoulou, we were going to tender on behalf of Mr Christodoulou today, so that matter's been dealt with.


VICE PRESIDENT HATCHER:  Right, thank you.  Who's the next witness?


MR ZEVARI:  Mr Anthony Rohr.


THE ASSOCIATE:  Please state your full name and address.


MR ROHR:  Anthony John Rohr, (address supplied).

<ANTHONY JOHN ROHR, SWORN������������������������������������������������� [3.05 PM]

EXAMINATION-IN-CHIEF BY MR ZEVARI��������������������������������� [3.05 PM]




MR ZEVARI:  Thank you, your Honour.  Mr Rohr, my name is Sina Zevari, I appear in these proceedings on behalf of Australian Business Industrial and the New South Wales Business Chamber.  Is your name Anthony Rohr?‑‑‑Yes.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������������� XN MR ZEVARI


Is your address 555 High Street, Maitland in New South Wales?‑‑‑Yes, my business address.


Business address, thank you.  Have you completed statements in these proceedings dated 21 September 2017 running to 119 paragraphs; 21 November 2017, running to 25 paragraphs; and 14 December 2017, running to 17 paragraphs?‑‑‑I have.


Are those statements in front of you, Mr Rohr?‑‑‑Yes, I do have them.


Are there any corrections you wish to make to those statements?‑‑‑No, there isn't.


Are those statements true and correct to the best of your knowledge and belief?‑‑‑Yes, they are.


I seek to tender those statements.


VICE PRESIDENT HATCHER:  The statement of Anthony Rohr dated 21 September 2017 will be marked exhibit 35.  The statement of Anthony Rohr dated 21 November 2017 will be marked exhibit 36 and the statement of Anthony Rohr dated 14 December 2017 will be marked exhibit 37.





MR ZEVARI:  Thank you, your Honours and Commissioner, Mr Rohr is available for cross-examination.



CROSS-EXAMINATION BY MR HARDING���������������������������������� [3.08 PM]


MR HARDING:  Mr Rohr, am I pronouncing your last name correctly?‑‑‑Yes, you are.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


You're the general manager of People Culture and Safety of the Mai-Wel Group and you - that is your group provides a number of business services called ADEs, yes?‑‑‑Yes, that's correct, and a few other things but yes.


What other things do you do?‑‑‑My first statement provides quite an overview. We're a fairly diverse organisation and we provide services in DES, so in open employment we provide some youth transition services to employment, we provide some residential independent living services and then also some day options.


Do you have day to day involvement in the business services?‑‑‑I do, yes.


You do?‑‑‑Yes, from - - -


Sorry, keep going?‑‑‑Yes, from the perspective of - from the sort of HR side of things, around being involved if there's employee matters and those types of things.  My role has transitioned and changed over time so we have recently had some structural changes where, you know, in the last probably six to eight weeks we've had someone who's now more involved and taken over some of the tasks that I previously did.


But do you have a business manager or manager of the business services?‑‑‑Yes, we do, yes.


They have responsibility for day to day work allocation?‑‑‑That's correct.


Do they have - are they responsible for the application of the Mai-Wel tool?‑‑‑No.


Who does that?‑‑‑So we have a role of supported employee services officer which is the role I just recently - just spoken about and they - yes, implementing the tools.  So it works between - when you say we've got a person who oversees the allocation of work.  To better describe our structure we have a person who oversees our three businesses that operate and they are involved in a bit more of the operational aspects and the business development parts of the business, and in each of the three businesses there is a manager who oversees that business.  They would probably be the ones who would more do the work allocation and so this role that supported employee services office works with those managers of each of those business around the application of the wage assessment tool, which I previously did before this role.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


So you have direct experience of applying the Mai-Wel assessment tool yourself?‑‑‑Yes, I do.


You gave some evidence just a minute ago to say that you operate - that is Mai-Wel operates the open employment service?‑‑‑Mm-hm.


Because I note that on page 34 of the SWS handbook Mai-Wel Ltd is an SWS assessment provider?‑‑‑Yes, that's correct.


Is that done in the context of your open employment service is it?‑‑‑It is, yes.


But you yourself are not an SWS assessor?‑‑‑No, I'm not.


Insofar as the Mai-Wel business services are concerned, he has no experience of using the SWS in the assessment of its employees does it?‑‑‑Yes, we do.


You do?‑‑‑We have experience.


You use SWS as well?‑‑‑Within our business in supported employment enterprises or ADEs, yes.


Is that because an element of the Mai-Wel tool is the assessment or productivity?‑‑‑No, it was more related to a venture that we'd started and, you know, the employees that we'd employed in there were via the open employment stream, through a DES.  We chose to use supported wages system for that.


Because they were - because it was classed as open employment?‑‑‑Yes, but they - yes, so they were - yes, it came through a DES provider and they were employed as open employment (indistinct) venture within our supported employment enterprises, as in you know that structure you know, the actual building where they were, the person who was supervising was also running the business. So it's not related to our tool but yes, as far as being familiar with the SWS, I have exposure from that perspective.


You have a building that was operating an open employment service with a group of employees assessed under the SWS?‑‑‑Yes.


You had your ADE enterprises operating in the same building?‑‑‑Yes.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


Operating under a different tool, the Mai-Wel tool?‑‑‑That's correct, yes.


At paragraph 53 of your first statement if I can take you to that, now you've got there a mix of employees that you were using to complete a job.  Have you got to paragraph 53?‑‑‑Yes, the one with the heading "Pay service".


Yes, that's right?‑‑‑Yes.


What that tells us is that you're using the various capabilities that you have available to ensure that a job's done?‑‑‑(No audible reply)


You've got a workforce that has a variety of different skills and you're utilising those skills to ensure that you get a job done by mixing and matching the skills that you have available. Would that be accurate?‑‑‑I wouldn't put it in that context as to why those people are matched up in that group.  It's more focused on looking at the people's skills and putting them together to enable a job to be done.  You could just have the person who does all the tasks do the job, two people who can do all the tasks, put them together and they'll be able to do the job but they mix so then you're able to offer those jobs to people with a variety of skills.  So it's - yes, I guess it's thinking about what the people can do and then working that out into how can they be allocated to that task.  So I took from the way you worded it as thinking about we've got a job to do and, yes, those people are allocated to it according to that.  It's sort of more or less worked the other way around.


You've got a job to do, you identify the tasks that you want done in the job, is that right?‑‑‑No, I'd say we've got a group of supported employees, we know the different capabilities of the supported employees and then we work out how they'll fit together to complete the task that's at hand.


Yes, so you're looking at your available workforce, in this case a team of three or more supported employees?‑‑‑Yes.


And you're working out how you can allocate - get that job done with the skills that you have available to do the job?‑‑‑Yes, yes, yes.


Is that accurate?‑‑‑Yes, that's one way to say it.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


Okay.  In terms of the Mai-Wel tool you use to assess people, if I can take you to a document, I'm referring to the Pearson report, your Honour, which is annexed to Ms Wilson's statement, and to the extent that I can locate it for your Honours and Commissioner, there's a second set of analysis done by Ms Pearson, titled Analysis of Wage Assessment Tools used by Business Services, that was done in 2017.


VICE PRESIDENT HATCHER:  It's all page numbered, so what page is it?


MR HARDING:  Unfortunately it's a separate document.


VICE PRESIDENT HATCHER:  Which attachment is it?


MR HARDING:  I'm just going to tell you, I think it's attachment - it's not a specific index, just bear with me.  I think it might be 3.


COMMISSIONER CAMBRIDGE:  Pearson report of April 2006, is that it?


MR HARDING:  No, Commissioner, that's the first one.  Then there's another report that is done.


VICE PRESIDENT HATCHER:  We've got part 2.


MR HARDING:  Yes, part 2, and then there's a third.


VICE PRESIDENT HATCHER:  So this is Analysis of Wage Assessment Tools used by Business Services?


MR HARDING:  Yes, it's got Australian Government, Department of Social Services on the top.




MR HARDING:  And you'll see that the Mai-Wel tool is item 7.  It appears, on the document that I have, on page 43.




MR HARDING:  It starts on page 42.  Have you go that, your Honour?

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING




MR HARDING:  You've got that relevant page?‑‑‑I can see, yes, the Mai-Wel Group Wage Assessment Tool, yes, on page 42.


It's a difficult document to navigate.  Have you had an opportunity to read this, whilst we've been looking for the document?‑‑‑No, I only just received it after you found it.


This is a document that purports to describe the Mai-Wel Group Wage Assessment Tool, and maybe, if I could just take you to 7.5.2, Competency and Productivity Assessment and, as I understand the tool, what happens is an employee is rated according to the levels of supervision they require for a set of skills, ranging from excellent to very poor and there's a score attached to that, is that right?‑‑‑Yes, that's the way it works.


So at excellent:


The employee can set up a job or perform the task with minimal supervision to a very high standard, with output at the same or above the average level of a non-disabled employee.


Is that accurate?‑‑‑In terms of?


In terms of your understanding of the tool you use?‑‑‑That it uses this scoring method, yes.  Yes, that's right.


Okay. So that level of competency you can have someone doing the work at about the same standard as a non-disabled worker or above that non-disabled worker?‑‑‑That's right.


Okay.  At the very bottom, the very poor:


High levels of supervision are required and regular training and the employee has a very low level of productivity.


Yes?‑‑‑Yes, that's correct.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


Productivity forms 50 per cent of the rating, is that right?  No - - - ?‑‑‑I wouldn't describe it as that, but go on, is there other points you had to that?


What would you describe it as?‑‑‑So the way that rating works, it's against a task list, so the way the tool works is it first establishes what the tasks are and then the ratings against the task that the people complete according to that.


VICE PRESIDENT HATCHER:  When you say "the tasks", is that the skills matrix referred to in 7.5.1?‑‑‑It is, but that's - yes, there's examples in there but obviously that's not the full skills matrix.




MR HARDING:  All right.  So that means you set up the task and you rate them, is that right?‑‑‑Mm hm.


Then you ask the employee to perform the task and then their performance is assessed - their productivity is first assessed, in relation to the task, is that an accurate way in which to describe it?‑‑‑Look, to give you an understanding of - I think probably further back, where things start, is that the - the employees are trained in the task that they undertake, so that's happening first.  There's people have employment plans, training goals, things they hope to achieve, so when you're talking about then the function of using this, there's an understanding of the task that someone can complete.  There is, on page 44, there's a not competent as well, so there's a score if someone's not able to undertake a task, possibly for safety reasons or possibly it's something that they haven't had the capacity to learn, so those tasks that are listed here, under 7.5.1, as an example, sweeping the workshop floor, so the first question is, are they capable of doing that task?  Then the second part is, 7.5.2, what rating are they given when they're undertaking that task?


Okay, I understand.  So the rating then is whether their excellent or very poor in, say, sweeping the workshop?‑‑‑That's right.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


VICE PRESIDENT HATCHER:  What's the process by which you get a percentage score?‑‑‑So the task list, the skills matrix, the task list as well, it could be 50 items that the Mai-Wel - the tool first works to say, "Okay, if we had someone without a disability doing the job what are the things, from go to whoa, within their job, that they would undertake?"  So that's where the task list comes from.  So they're scored against each one of those tasks within the task list or the skills matrix.  That gives them a rating of one to six and then that's worked out as a percentage of the overall total that's possible to score doing those tasks.


And then how does the productivity assessment then factor in?‑‑‑Yes, so in applying this competency and productivity assessment the first question is, "Sweeping the floor, can the supported employee undertake that task?"  So if they can it starts off they're definitely a one, they would score at least a one, but then it looks at saying, "What's the level of supervision that the employee may need while undertaking that task?  What's the productivity?"  So if it's benchmarked to say, "Well, it would take two hours for a person to sweep the workshop floor, but it takes them half the day", then they'd be rated within the - that assessment matrix, according to that, so that's where the productivity part of it comes into being.


If you look at the example on page 46, is this what it does, it gives a competency and productivity assessment for each of the various skills?‑‑‑It does, yes.  So it's a bit hard to read what's - on the top of the columns there is the - - -


The first one is sweeping, isn't it?‑‑‑Sweeping, it is too.  So it's saying, "Mark is good, whereas Darren is very good."  So, form the scoring, a very good, we're giving a rating of five, whereas a good would be four.  So the tool adds up the value of each of those ratings and comes up with a score at the end, of what they've scored, according to their assessments.


So is that just an average of all of them?‑‑‑Not an average, but it works out as a percentage of the possible score.  So if you scored the highest score of six for each of those, well that's the maximum possible score to be 100 per cent, so it's the percentage of the values that they scored to equal that 100 per cent, yes, the proportion of that 100 per cent.


If you go to 7.4.3, it says level 6 gets you to 40 per cent of the minimum wage?‑‑‑Yes.  So the way the levels work, there are smaller increments at the lower levels, so it's sort of 10 per cent, 15 per cent, to look at those bands.  So when the wage is calculated, it falls into a band, so a level 2 would be between 10 and 15 per cent and a level 3, 15 to 20.  Whereas when you get to level 30, it goes from 30 per cent to 40 per cent and progresses in higher bands as you get up to the larger percentages.


What's level 7?  Is that like 110 on the loud speaker, is it?‑‑‑So what they - I'm not sure.  Level 7 then has level 7, I can't remember - I'd have to see the matrix in front of me, but level 7A and level 7B and level 7C, so that sort of makes up the, yes, the - what's it listed as here, the 50 to 100 per cent.  So there's multiple levels in level 7.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


I don't see a level 7 in your ratings, it goes up to 6?  In 7.5.2 ranges from six to one, level 7 doesn't - - -




VICE PRESIDENT HATCHER:  Sorry, six to zero.  I don't see a level 7?‑‑‑That's because that's the score for the rating.  The levels that I believe we're talking about is the overall score, gives you a percentage of the total possible, and so if your overall score is 10 per cent you'll be at level 2.  If your overall score is 17 per cent you'll be at level 3.  So that's what the levels are referring to, as opposed to the competency and productivity rating.  So I guess it's like your wage classification level.


MR HARDING:  Yes, I understand, I think.  What it tells us, though, is that at level 6 the maximum you get is 40 per cent of the minimum wage, that's right?‑‑‑Yes, you're reading from - - -


I'm reading now from the point that his Honour was asking you about, which is 7.5.3?‑‑‑Sorry, over on page 47, I haven't seen this document before so I'm not familiar with it, but page 47 you can see those wage levels outlined much more clearly.


Yes, but is it correct to say that if you're rated at level 6 for a task you could get no more than 40 per cent of the minimum wage?‑‑‑No.  I think you're drawing - if you look at the table, at the bottom of page 47, it's got levels 1, 2, 3, 4, 5, 6, 7, and then 7 goes on to 100 per cent?


Yes, I see that.  So what you've got at level 6, okay, I understand that, so at level 6 the score ranges from 40 to 49 per cent and then you get $5.50 of the hourly rate of pay as it then was - yes - and then, from then, level 7 takes us to 50 per cent and above to 100 per cent?‑‑‑Yes.


So at level 6 on this table, you can get between 40 per cent and 49 per cent of the minimum wage.  Is that the way to read it?‑‑‑So at a score of between 40 and 49 per cent, you'll get $5.50 an hour, which, without a calculator, is 40 per cent of that rate there.


Yes, it corresponds with wage level 6?‑‑‑That's right, yes.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


That is in a circumstance where that attracts a rating of "excellent"?‑‑‑No.


No, that's not correct?‑‑‑I will explain it in another way.  With that rating score, if I was to get a 6 for every single task that I have on there, I would end up with a score of 100 per cent.  If I was to, you know, score between 3 and 4 for each task, I'd end up somewhere at 50 per cent.


Okay?‑‑‑So, on the levels here on p.47, I'd be a hundred per cent if I scored 6 for all those tasks I'm rated against, whereas if I scored between 3 and 4, I'd probably end up somewhere between level 6 and level 7.


VICE PRESIDENT HATCHER:  You get scored for all those tasks even though you might not be doing a whole lot of them?  How does that work?‑‑‑Yes, that's right, so you may get an X for some that you aren't able to do or can't do.


The question was directed at whether you're actually doing them or not?‑‑‑Yes, yes, so they may not be doing those tasks.


So do they count as a zero or do they not count at all?‑‑‑It counts as a zero, yes.


If you have just given somebody sweeping and that's all, they will get a rating for sweeping and they will get a zero for everything else?‑‑‑In theory, that could be the case, but in practice, it's not the philosophy of what they are there for and the tool itself is about looking at the skills and competencies that someone can be - you know, that can be delivered to someone, they can learn.  In effect, I see it as a system about reward and recognition for learning new tasks and skills and for some people when they start supported employment and they are new in employment, you know, obviously they start with a low base of skills and learn quite a lot.  It does get to the point where people, you know, if the job doesn't change, they don't learn much, but even the supported employees who have worked for a long while will still, at points, pick up new skills and tasks and improve that, so, yes.


MR HARDING:  But is it right to say that you are assessed on the basis of tasks that you might be asked to perform - I withdraw that.  It's based on an assessment of the tasks, some of which you will be asked to perform and some of which you might be asked to perform in the future but not now?‑‑‑That's correct.  The way the tool works is that the skill matrix is set up for each of the different enterprises that we have.  We have a timber manufacturing workshop, a place that does document destruction, so that skills matrix is based around the role that someone might do.  So it first looks at saying, "Well, what would a person without a disability do in this job?" and so the tasks that they are considering are relevant to the role in that workplace.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


Yes, but you start with the tasks that you need performed?‑‑‑Yes.


And you assess someone's capacity to do those tasks according to your running system?‑‑‑Yes.


And you might allocate them that task once they have gone through their training or you might allocate them a different task?‑‑‑That's the case, yes.


That's right?‑‑‑Could be the case, or they could do one task one day and another task another day, depending on what's happening.


Yes, that's right.  You say in paragraph 101 of your first statement that you support, that is your organisation supports, the proposed work value classification tool?‑‑‑Yes.


If I can hand you a copy of that tool?‑‑‑I have their submission.


We will just hand you a copy.  You have got that?  That looks like it's the right one?‑‑‑Yes.


It is correct to say, isn't it, Mr Rohr, that this hasn't been utilised in your enterprise yet?‑‑‑That's correct.


You haven't applied it or assessed it?‑‑‑No, not in a formal way.


No.  Nor have you costed it?‑‑‑Not in a formal way, no.


You say in 101:


This tool directly matches the evolution of how Mai-Wel has created jobs in its ADEs


Do you mean that it's based on the tasks that you've just described, a task that you might be asked to perform?  Is that what you mean?‑‑‑Well, no, no, I wouldn't use those words to describe what I mean.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


What do you mean by "directly matching the evolution"?‑‑‑I guess the evolution of supported employment and why Mai-Wel has the businesses that we have is about - I guess you'd say we've started with a workforce of people with disabilities and we've brought in work that matches those capabilities and the things that they can do.  We have three very different types of businesses which we operate, all of which do relatively rudimentary tasks through to some with some complexities.  So the tasks that the guys are doing are constructed around what their capacity is and what their abilities are.  When I say it looks at the evolution of, you know, where the Mae-Wel talk from, the classification structure also takes into account, you know, that capacity of those supported employees and will give us the opportunity to consider the tasks that have been built around the work that they're doing.


How do you say that occurs in relation to the classifications that are set out in the classification descriptors?  You say that it enables you to assess the individual manifestations of the person's disability and their productivity as a result?  Is that your point when you are describing its application under those classification descriptors?‑‑‑So looking at Annexure A, you know, A.2, level A, it goes through some of the factors around, you know, "Continually requires a high level of work support", it says, "Has some difficulty staying on task and remaining at their work", "Requires the quality of the work to be constantly checked", "Performs very basic tasks", so that, you know, has some opportunity to consider the way work is constructed for that individual, the fact that, you know, is there a task where someone can have an opportunity to be at their work station and be able to have a job where it's set up so that they can have the best opportunity to stay on task and to do what they're doing.  So that considers those types of things, through to, you know, level D, A.5, level D, point (i), "Can mostly perform complex tasks with in grade 2", you know, "Has the quality of their work occasionally checked by the supervisor", so, again, that gives a capacity to look at the level at which they are performing their tasks and what they're doing.


Doesn't the SWS allow you to do that as well?  What it does, doesn't it, is to assist the way in which work is performed according to the tasks that the employer has allocated?‑‑‑It's probably that last point that you make about the tasks that the employer has allocated because, you know, your question started with, you know, how the work value classification structure - "evolution" was the word or how it has similarities.  It allows consideration of the work level whereas the SWS is only considering a task that's undertaken, so it doesn't have a broader scope to view what is involved in either what the supported employee is actually doing or, you know, all the tasks that may be, I suppose, considering the level of the tasks that that the person is performing according to their - what it is they're doing, according to the broader role.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


Is that based on your personal experience of the SWS or is it just your assumption about how it operates?‑‑‑So I've had experience with the SWS, as we spoke about at the beginning, through, you know, a group working in the building of our supported employment enterprises.  Mai-Wel has organised SWS assessors to come in and look at the workplace for our own knowledge and, as you alluded to, we have people who undertake SWS assessment as employees of Mai-Wel.  So, whilst I'm not an SWS assessor myself, my personal experience, I suppose, gives me a pretty good knowledge of how the tool is applied.


Because the evidence is that in the case of an SWS assessment, if someone strays off task, that's taken into account.  Do you accept that?‑‑‑Yes, that contributes to their timing, yes.


That contributes to their timing?‑‑‑Yes.


It is an assessment that doesn't involve the application of supervision, so you're just looking at how the employee performs the task.  Do you accept that?‑‑‑Sorry, say that again, please.


it is an assessment that doesn't take into account the supervision that's applied to an employee, it just looks at how that worker performs the task?‑‑‑Largely, but I don't totally agree because SWS does take into account supervision.


The evidence has been that the supervision is stripped out and there's only examination of how the work is performed.  Do you disagree with that?‑‑‑Somewhat, yes, because there is an element where you can consider supervision at the end of the assessment to say that if it is a higher level of supervision than usual then the rating, the assessment score will be adjusted accordingly.


And it is adjusted to take account of the supervision; is that your point?‑‑‑Yes.


So that takes it into account, even on your own version of the SWS, doesn't it?‑‑‑Yes.


And the SWS takes account, doesn't it, of the quality with which the work is performed as well as the speed with which its performed against the benchmark?‑‑‑Yes, that's what it does.


How does that marry with your evidence in paragraph 106 that a wage assessment that looks at speed only would inflate the wages of supported employees?  You are not suggesting that's the SWS, are you?‑‑‑Yes, I am.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


You have just given some evidence that suggests that's not what the SWS does?‑‑‑Well, I guess in context, if you look at how the SWS is applied, you have a task, you know, which is repetitive and routine, the element that you consider which is, you know, spoken about to say, "Oh, look, it's about quality, it's about how well it's performed", is insignificant into the outcome, and when you think of why a point like that is there, if I've got a very basic task which, you know, is something that I repeat - for instance, we have people do document destruction - so if my task is to remove these pages from this binder ready to be destroyed, the level of quality isn't a factor, isn't as important a factor, like sure it's there and it's something to be checked, but are the pages out of there are not, that's fairly rudimentary.  The speed at which I do that is significant.  I might be able to, you know - the supported employee might be able to do it at 50 per cent or 80 per cent of the speed I can, so that has a very high weighting and a significant bearing on the outcome.


Doesn't that assume something about the nature of the disability?  A person's disability may bear on their ability to perform that task and perform it to the standard that you require.  Would you accept that?‑‑‑That their disability may have a bearing on how it can be performed?


Yes?‑‑‑Sure, that's absolutely - yes.


And that is taking into account by the SWS assessment because it's looking against a benchmark of someone who doesn't have that particular disability?‑‑‑Yes, but what happened, we started a discussion about SWS and thinking of the differences and saying that, you know, the work value classification structure, you know, gives us capacity to look at the broad concept of the level of the work.  SWS does not consider the level of someone's work in removing, yes, these pages from that binder, it only looks at the speed, and, yes, sure, it refers to quality, but, at the end of the day, it's the timing of how fast they can do that which is - - -


You are referring to one task.  The SWS applies to a variety of different, or can be applied to a variety of different tasks.  You are not making a claim on behalf of all works that's performed in ADEs, are you?‑‑‑Well, we have people in our supported employment enterprises whose job would primarily be to support paper, sort of one task.


I can give you - I've lost it amongst all my paperwork, but you would accept that - are you familiar with the modern award?‑‑‑The modern award, the Supported Employment Services - --


Yes, the Supported Employment Services Award?‑‑‑Reasonably, but, yes.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


I'm going to hand you a copy.  If you start at page 35, and the work you were talking about in terms of document destruction, the most like activity that I can find is on page 39 where you've got recycling which has general labouring, sorting and shredding as being activities.  See those?‑‑‑Mm-hm.


And you would accept, wouldn't you, that the sorting you're referring to is work that would fall within Grade 2 of the award?‑‑‑Yes, that's right, yes, those.


And likewise shredding?‑‑‑Yes.


And you see that in relation to the third dot point, loading, baling and strapping equipment, there's an "and/or".  Would you accept that any one of those activities would attract the rate of pay in the award for Grade 2 work?‑‑‑Yes.


And if a non-disabled person was performing the work and they were sorting or shredding, they'd get the full award wage for Grade 2, wouldn't they?‑‑‑Yes.


Now, if I can take you to, I think it's the second statement that you've prepared, headed, "Statement of Anthony Rohr", and it's dated - I can't remember what exhibit number it is - undated.  And my copy has a subheading:  "No one wage assessment tool is (indistinct) at all workplaces."


SPEAKER:  Exhibit 36.


MR HARDING:  Exhibit 36, I'm told?‑‑‑Yes, I have that in front of me.


And you utilised the example of, in paragraph 6:  "An engagement of an SW assessor in the timber trade and pallet manufacturing workshop to apply the SW scenarios where supported employees undertook production line work."  Yes?‑‑‑Sorry, what paragraph were you reading?


Paragraph 6 of that statement?‑‑‑Okay.  Yes.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


And then you set out some observations of what appear to be observations of yours in paragraphs 10 thereafter about that work.  You don't put in evidence of the SW assessment.  Are these observations that you've made yourself or do they come from the SW assessment you refer to in paragraph 6?‑‑‑So they've all engaged SW assessor to come in and trial applying SWS in our workplace, yes, going back a little while now.  And that's, yes, drawing from those, yes, those - that assessment that occurred.  Yes, so, yes, what's being referred to in paragraph 6.


But then you go on in paragraph 10 to describe the making of a crate; yes?  Now, that's your description, isn't it?  It's not the SWS assessor speaking through you?‑‑‑No, it's how it's done.


It's how it's done?‑‑‑Yes.


Now, if I can hand you another document, which is, your Honour, your Honours and Commissioner, the modified supported wages system demonstration report of 2017.  I think it is exhibit 2.  Now, this demonstration project was performed for the purposes of the assessment of the modified SWS and it was done - there was - it included an assessment that was done at Mai-Wel.  Are you aware of that?‑‑‑I am, yes, that's what I was referring to in paragraph 6 there.


Aha.  And it seems like the Mai-Wel demonstration starts at page 16 of that report.  If you could perhaps have a look at that and what that assessed was then, from page 22, it tells us that there was an assessment of a team of three building a standard wooden crate.  That's the kind of team of three that you referred to in your statement earlier, isn't it, where you have someone who can perform a greater range of tasks and then some others who can perform less of those tasks?‑‑‑Yes.


Is that right?‑‑‑That's right.


And is it right to say that the person who can perform more tasks then is likely to be performing something of a supervisory or coordination role in respect of the other employees?‑‑‑Yes, I wouldn't call it supervisionary, but, yes, coordination, yes, that would probably be one way to describe it.


That'd be accurate?‑‑‑Yes.


Now, paragraph 15 of your statement, the one that we've been discussing about the crate, you say the example which relates to production line, the SWS methodology gives no recognition to the value and broad skills of a supported employee leading the crate assemblies contributing to the task.  But page 23 of the demonstration report tells us, doesn't it, that there were - it was reasonably straight forward to collect benchmark data for all the identified duties and tasks and then determine the productive output of the work of each of them?‑‑‑Sorry, page which?

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


Page 23, top paragraph?‑‑‑Look, I don't have the report.  I'd love to be able to refer to this, but my understanding is that it's something that we couldn't, so I haven't come prepared to respond to this.


Well, just read it?‑‑‑But I'm happy to discuss what's in my statement.


No, I wanting to discuss this.  So have a look at page 23?‑‑‑23, what paragraph?


Well, it hasn't got a paragraph number, but the top of the page?‑‑‑"Group setting" - - -


"Group setting benchmark in calculating individual productivity when working in a group"?‑‑‑Yes.


And what this tells us is that the SWS assessors who undertook this were able to identify all the duties and tasks and apportion the percentage to each employee to assess each employee's productive output?‑‑‑That's what - I haven't read or haven't had a chance to read all this, I'm not the quickest reader around, but what I'm aware from this demonstration is that, yes, the assessors spent a great deal of time to break up the tasks and determine how they could measure he tasks.  However, my view on the outcome is that they didn't achieve that successfully or transparently.  The measurements that are listed in this report, the assessors were not able to give us an understanding of how they weighted these outcomes and how they come up with a score.  The number of measurements and the timing of measurements was extremely complicated.  They, you know, got to the point - and this is where I, sort of, highlight that, you know, the SWS does not apportion, you know, an appropriate value to the task that the guys are doing.  So in this production line environment, they, you know, record the time it took someone to push a button.  That was, you know, that was what they were doing.  This guy pushing the button, though, he was the one who, you know, was reading the cutting list, he was, you know, counting what timber was cut.  He was setting up the measurements.  And it doesn't - didn't adequately provide recognition for those.  And so that's just the difference between what - looking at competency can do is recognising the level at which that guy is working at versus, yes, timing how long it takes to push a button.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


On page 38 of the statement - of the report - the top paragraph, it says within the duration recordings, the assessor calculates exactly who did what and how long it took and the times needed to apportion and calculate a share of the output by the employee.  Now, what this suggests is that the SWS assessors here were able to work out the contribution of each member of the team and determine what their productivity is against the benchmark.  Do you accept that arising from this report?‑‑‑That's a really interesting perspective that the assessors have shared to their capacity of what they could do.  What they're saying there is if we've got three guys assembling, you know, a crate.  So part of it could be build the base.  So you put the timber in place, you know, you square it up, you nail it, you do all this sort of stuff.  So what they're saying is they use their judgment to say, well, that person probably, you know, contributed about 50 per cent of that, this person was 70 per cent and this person was 100 per cent.  And that was - that was something that was a big concern and quite subjective about the way this demonstration occurred.


That's your assessment of it, is it?‑‑‑No, that's how the guys did it.


Okay?‑‑‑So it's not my assessment of it.  That's how they outlined, they calculated.  Because what happens in the day, teams work together differently, so there could be one guy over here doing some stuff on his own putting a side together and there's two guys here doing the base, the guy finishes the sides so he comes over and helps the guys finishing the base.  So they'd go:  "All right, well, they're probably 50 per cent of the way through, so in terms of the timing, we'll apportion 50 per cent."  But there was no measurement to say they were 50 per cent of the way through.  That was just, you know, an arbitrary guess to say, well, you know, it's about there.  So there was lots of subjectivity in the way that that demonstration was applied and that was the whole purpose, to say, look, there's challenges for this tool against, you know, things like team-based work and this has been a good example to show that.  The report is written by the assessors as to how they did that.  But there's no - there's no scope and there hasn't been any capacity for me to provide a response in regards to that.  So I'm happy to answer questions and talk about it.


Well, you are?‑‑‑Yes, but it's not - it's not a fair response, really, because, you know, yes, if I could, I'd like to.


Well, page 39, the third paragraph tells us that these contributions were assessed in conjunction with Mai-Wel supervisors?‑‑‑Sorry, what's it saying?  Say that again?


VICE PRESIDENT HATCHER:  I can't see that.


MR HARDING:  Sorry, maybe I've put it in the wrong way because I think it says in the second paragraph:  "ADE employers and assessors need to discuss, identify and agree upon as to what the duties and tasks are reflective of the employee's core job that the employee is regularly required to perform.  And I suppose what they're saying there is that's something that should be done.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


VICE PRESIDENT HATCHER:  What page is this?


MR HARDING:  This is page 39.


VICE PRESIDENT HATCHER:  Yes, what line, please?




VICE PRESIDENT HATCHER:  My page 39, second paragraph begins with the words:  "Additional benchmarks will be required."


MR HARDING:  I'm sorry, it's the third paragraph, your Honour.




MR HARDING:  Now, there's evidence that that's the way the work - that the assessment is conducted, isn't it, that there is discussion between the assessor and the employer's representatives and there's agreement made about the tasks and the manner in which they assess them?‑‑‑And it also says:


There are obviously greater challenges if the group was larger, with even more employees per group, and with a greater level of crate construction complexities.


So that's probably a good example of where the challenge are.  You know, the concept of SWS is:  so let's set up a benchmark of what someone does; but this environment is dynamic.  It's building custom sized crats and pallets, so there is no standard size that gets produced each time.  So it could be a pallet - a crate - you know, I think in my statement, anything from the size of a carton of beer through to something quite massive, you would fit a Mini in.  And with a small crate you can have a team of three; a large crate, you can have a team of 10.  And so that dynamics of having a benchmark and assessment is almost - I see it as impossible to apply in a transparent and practical manner.


You're not suggesting that it's impossible, you're just saying it's more complex?‑‑‑Well, anything can be achieved if you've got the money to pay for it, but unfortunately the three-hour assessments that are provided for just aren't going to cut in this environment.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


The Commonwealth provide the assessors, don't they?  It's not a funding cost to the ADE?‑‑‑No, it's not just the Commonwealth, because in this scenario we're talking about the modified supported wages system in which the enterprise undertakes benchmarking, and it's not a realistic expectation for a business to incur that cost, to have such a complex nature of how it will come up with someone's rate of pay by having to have a ridiculous amount of benchmarks against these people.  And in fact just the lack of consistency or the customer nature of these crates and pallets mean that feasibly it's not realistic.  When the guys did this demonstration, to be able to do the demonstration they made six of the same crates that were the same size, but they weren't even for a customer order, so they had to artificially create these items in place of doing work that we were actually being paid for.


That's a demonstration, isn't it, Mr Rohr?  That's the purpose, it was a demonstration, it wasn't necessarily designed to contribute to your particular output at that time; it was intended to demonstrate how the SWS could be applied, and it was applied?‑‑‑So it was a demonstration that went for two days in the workplace.


Yes?‑‑‑In which they produced those pallets.  They had other customer orders, one which was urgent, which they did get done; others which they had to put off until they could.  And the demonstration was to look at the reality of how this could be applied.  And as you said, it was applied.  Was it successful?  In my opinion, no, it wasn't.  It was it doing and SWS in the course of normal business?  You know, "We're not going to interrupt, we just wanted to what's happening."  It was far from that.


If you look at the bottom of paragraph 39, what it says, doesn't it, dealing with your point about the contribution of those who are producing - performing more tasks - is that there's a correlation between the number of tasks that an employee could perform and their productivity.  For all six employees there was a significant correlation between the number of tasks performed on the productivity results, which is that for those with the greater number of tasks had higher productivity and those with the fewer number of tasks had lower productivity?‑‑‑The demonstration did show that that was the case.


Yes?‑‑‑One of the things that was lacking - and, you know, it was put down the time - was actually be assessors being able to explain how they came up with those results.  So in my understanding part of the SWS assessment process is that you would have a validation process where the assessment would be discussed with the manager or the workplace to say:  these are the scoring, this is how it worked.  That was not able to occur in this place because of the complexity of ‑ ‑ ‑

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


You disagree with this?  You disagree with the conclusion?‑‑‑So what I'm saying is that the understanding of how they came up with those figures was not able to be - we weren't able to go through the normal process and we weren't able to see in a transparent way how that occurred.  So I agree that those who undertook more tasks - you know, had a higher level of skill - did score higher, but there wasn't any actual way for us to say, "How did you come up with that?"  So we couldn't really see that process; through the weighting, through the allocations of proportions and those sorts of things - - -


So your complaint is that you don't understand how they came up with the numbers, but you don't disagree that they came up with that conclusion based on that assessment that they did?‑‑‑So it's not that I don't understand how they came up with the numbers, is that it was an demonstrated to us, it wasn't explained, because they didn't run through the evidence in the way that you would normally expect.


On page 61 - actually, that's in relation to the DSA.  But just on the DSA, while we're there, they also - and I know you can't comment on it, but they also established the same correlation in relation to the tasks they assessed there for the six employees that they examined.  In relation to Mai-Wel you don't have any evidence that contradicts their assessment, though, do you?‑‑‑That contradicts their assessment?


Yes?‑‑‑In what sense do you mean?  Like, that - - -


That suggests that is wrong?‑‑‑That it's wrong?  It hasn't been a process of - like, I guess are you comparing - in contradiction - comparing wage rates or outcome scores ‑ ‑ ‑


The way it worked, isn't it, is that you had these SWS assessors who came down, examined your production process, and reached conclusions about the productivity of the employees that they examined.  Yes?‑‑‑Yes.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


And you don't have any evidence to suggest the timings and the assessments that they made were wrong, you just disagree with them?‑‑‑The evidence I've put forward to say - yes, I don't think they were wrong from the sense that they did the assessment, they measured the times, they measured productivity, and came up with a result that had some level of correlation to our wage assessment tool.  However, I think the context needs to be really well understood if we're going to talk about this demonstration, as to what the environment was and how it works.  You know, some of the issues with it that we haven't even touched base about is the team dynamics, the way that the teams work together.  Some teams are more productive than other teams.  When you mix the team members around, the results change.  So there are a whole raft of things around the assessment process that had significant issues.  And, you know, this demonstration showed that, but it didn't go any further than that.  There is - yes.


It was a demonstration?‑‑‑Yes, that's right.


That's right?‑‑‑It showed it had issues - big ones for us.


At paragraph 24 you say the employee in relation to - under the heading, "SWS does not assess all the tasks an employee undertakes in the workplace", and you go on in paragraph 24 to say that:


The supported employees who have the capability to undertake most tasks in the workplace will not have the broad range of skills recognised in and SWS assessment.  The employee who is skilled at many tasks, including complex tasks, may have an outcome under the SWS that is a lower rate of pay.


That directly contradicts - that stands in complete contrast to the findings of this demonstration report, doesn't it?‑‑‑Sorry, paragraph 24?


Yes?‑‑‑It does, but it's talking about a different - if I can explain the context, because I think that's important.  Say for instance I spoke about our document destruction business.  No, sorry, I will go back to the demonstration, because what it doesn't do, for instance, one of the examples is they will do production line work in terms of cutting the timber.  So I talked about the SWS assessor measuring how long it takes someone to push a button.  That person pushing the button is the person who is pretty much capable of doing most tasks, pretty much all the tasks.  So that role in that part of cutting the timber - which is, you know, probably about a third of the work to building a crate - the value being assessed against them in that time, you know, there is some recognition for turning on the saw, doing the pre-start check; but then in the cutting of the timber all that's happening is they're being scored against one function, when in that time they're really actually counting how many pieces of timber are cut, making sure the right timber is cut to the right length, those right pieces; they would have some element of stock control; so we manufacture export crates, so you know, the certification of the process and getting the wood from the rock piles and those sorts of things.  So whilst they're doing that, pushing the button, they're also engaged in making sure these are the right things are happening.  That's where I'm saying that the value of what that person is contributing at that time isn't rated very highly in the timing process.

***������� ANTHONY JOHN ROHR������������������������������������������������������������������������������������������������������ XXN MR HARDING


I understand that very complex answer, Mr Rohr, but the short point is, isn't it, that there was an assessment done by independent SWS assessors and the two group leaders - this is what is said in paragraph 39 - performing more tasks than the others had higher productivity results.  Doesn't that just follow from the fact that you've got a person whose disability does not affect them to the same extent as others will have higher productivity because they can do more parts of the job?‑‑‑I would go back to the point - I would agree, yes, that's what's shown.  But I will go back to the point, too, is that in this demonstration we did not have the opportunity to sit with the assessors and work out what went behind their calculations to come up with a result.


Excuse me for a moment.  My instructions are that there was time to speak with the assessors.  You say that's wrong?‑‑‑So part of my understanding ‑ ‑ ‑


Was it just that you weren't involved?‑‑‑The steps in the SWS process is there's a validation process which comes at the end.  We sat in the room and the assessors were there, but what was explained is from a time perspective - as in we were running out of time - we don't have the opportunity to run through the vast complexity of timings they took to describe how we come up with a result.  So we knew they went in, we knew they did the timings, we knew the way they did the timings, but there is a process of:  okay, this is how you come up with the calculation and the wage results.  If you're doing two or three simple tasks, that's easy to understand, but when there's well over a dozen, there was not the opportunity to scrutinise question or look into that.


Well, Mr Rohr, I know you've got some complaints about that part of the process, but you're not suggesting, are you, for a moment, that Mai-Wel assessors or supervisors, including yourself, wasn't part of this demonstration project?  You weren't excluded from it, you participated in it?‑‑‑No, I think I was quite specific about my last point in that when we went through the validation process the assessors who did the assessment did not go through how they came up with their calculations.


Okay.  Thank you.  No further questions, your Honour.

RE-EXAMINATION BY MR ZEVARI���������������������������������������������� [4.12 PM]


MR ZEVARI:  Mr Rohr, I just wanted to clarify, I was a little confused by a couple of the answers when you were taken to the report and the Mai-Wel tool.  Have you got that in front of you?‑‑‑The - okay.


7.5.3 of that second attachment to Ms Wilson's statement?‑‑‑Yes, I do.

***������� ANTHONY JOHN ROHR���������������������������������������������������������������������������������������������������������� RXN MR ZEVARI


You went through the table and set out the things attached to the different wage levels.  Just for my benefit, is it possible to get 100 per cent of the award wage under your tool?‑‑‑It is, yes.


But are the last few all referred to as level 7?‑‑‑That's correct.  And then there are multiple levels within level 7.


I understand.  The other question I had for you, Mr Rohr, you referred to - and please correct me if I'm misremembered - the different work tasks in, let's say, a section of the business in terms of making that assessment.  If we dealt with a hypothetical where one of those rooms had a - let's say a sweeping function, cleaning function, and a packing function, but I were an employee who was required to only do one of those and I scored - would my wage be affected by not being able to do one of the other two?‑‑‑The way the tool is set up, a workplace - there would be an expectation that someone would have the opportunity to do all those jobs.  So if there was a sweeping, a cleaning, and a packing - I think that's what you said - in that workplace, then people would be given the opportunity to learn and train in all those tasks.  It may be the case that someone only is able to do the packing one, they're not able to do the cleaning or the sweeping; therefore when their wage assessment is completed, it considers all the tasks in that job role and they would be scored against the ones that they can do.


What about if they were only required to do one of those functions?‑‑‑So if they're only required to do packing but they can still do cleaning and sweeping, they would be scored against cleaning and sweeping and still be - you know, their wage assessment would consider those, even if they're only doing the packing work, yes.


Thank you.  Nothing further.


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

<THE WITNESS WITHDREW����������������������������������������������������������� [4.15 PM]


VICE PRESIDENT HATCHER:  Mr Harding, I know you've been busy, but have you had a chance to look at this document?


MR HARDING:  No, I haven't, your Honour.  I've been asking some questions of other people.

***������� ANTHONY JOHN ROHR���������������������������������������������������������������������������������������������������������� RXN MR ZEVARI


VICE PRESIDENT HATCHER:  We might deal with that tomorrow morning.  Is there anything further we can deal with today?  I understand there are a couple of witnesses who are no longer required or are no longer being called.


MR ZEVARI:  That is correct.  We've advised our friends about that.




MR ZEVARI:  Ms Davidson and Mr Read.


VICE PRESIDENT HATCHER:  Any other procedural matters?  Thank you.  We will now adjourn.

ADJOURNED UNTIL TUESDAY, 13 FEBRUARY 2018 �������������� [4.16 PM]



ANNE LYNETTE CONSTABLE, AFFIRMED............................................. PN2679

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN2679

EXHIBIT #20 WITNESS STATEMENT OF ANNE LYNETTE CONSTABLE DATED 21/09/2017............................................................................................................. PN2691

EXHIBIT #21 SUPPLEMENTARY WITNESS STATEMENT OF ANNE LYNETTE CONSTABLE DATED 14/12/0217.................................................................... PN2692

CROSS-EXAMINATION BY MR HARDING............................................... PN2693

THE WITNESS WITHDREW.......................................................................... PN2809

STEPHEN CHARLES BURGESS, SWORN.................................................. PN2813

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN2813

EXHIBIT #22 WITNESS STATEMENT OF STEPHEN CHARLES BURGESS DATED 21/09/2017............................................................................................................. PN2823

EXHIBIT #23 FURTHER WITNESS STATEMENT OF STEPHEN CHARLES BURGESS DATED 14/12/2017.............................................................................................. PN2824

CROSS-EXAMINATION BY MR HARDING............................................... PN2825

RE-EXAMINATION BY MR ZEVARI........................................................... PN3011

THE WITNESS WITHDREW.......................................................................... PN3027

ROHAN MARTIN BRADDY, SWORN.......................................................... PN3045

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN3045



CROSS-EXAMINATION BY MR HARDING............................................... PN3062



THE WITNESS WITHDREW.......................................................................... PN3207

ROHAN MARTIN BRADDY, RECALLED................................................... PN3207

THE WITNESS WITHDREW.......................................................................... PN3208

BRADLEY RAYMOND BURRIDGE, AFFIRMED..................................... PN3221

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN3221

EXHIBIT #28 STATEMENT OF BRADLEY RAYMOND BURRIDGE DATED 25/09/2017............................................................................................................................... PN3232

EXHIBIT #29 ADDITIONAL STATEMENT OF BRADLEY BURRIDGE DATED 25/10/2017............................................................................................................................... PN3232

EXHIBIT #30 FURTHER STATEMENT OF BRADLEY RAYMOND BURRIDGE DATED 12/12/2017............................................................................................................. PN3232

CROSS-EXAMINATION BY MR HARDING............................................... PN3233

THE WITNESS WITHDREW.......................................................................... PN3343

HEATH ALEXANDER DICKENS, SWORN................................................. PN3350

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN3350

EXHIBIT #31 WITNESS STATEMENT OF HEATH ALEXANDER DICKENS DATED 22/09/2017............................................................................................................. PN3360

EXHIBIT #32 FURTHER WITNESS STATEMENT OF HEATH ALEXANDER DICKENS DATED 21/11/2017.............................................................................................. PN3361

EXHIBIT #33 WITNESS STATEMENT OF HEATH ALEXANDER DICKENS DATED 14/12/2017............................................................................................................. PN3362

CROSS-EXAMINATION BY MR HARDING............................................... PN3364

RE-EXAMINATION BY MR ZEVARI........................................................... PN3644

THE WITNESS WITHDREW.......................................................................... PN3667

EXHIBIT #34 DISABILITY MAINTENANCE INSTRUMENT GUIDELINES, VERSION 6.1, EFFECTIVE 01/07/2013..................................................................................... PN3668

ANTHONY JOHN ROHR, SWORN................................................................ PN3677

EXAMINATION-IN-CHIEF BY MR ZEVARI.............................................. PN3677

EXHIBIT #35 WITNESS STATEMENT OF ANTHONY ROHR DATED 21/09/2017............................................................................................................................... PN3686

EXHIBIT #36 FURTHER WITNESS STATEMENT OF ANTHONY ROHR DATED 21/11/2017............................................................................................................................... PN3686

EXHIBIT #37 FURTHER WITNESS STATEMENT OF ANTHONY ROHR DATED 14/12/2017............................................................................................................................... PN3686

CROSS-EXAMINATION BY MR HARDING............................................... PN3688

RE-EXAMINATION BY MR ZEVARI........................................................... PN3876

THE WITNESS WITHDREW.......................................................................... PN3884