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s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Supported Employment Services Award 2010




9.08 AM, MONDAY, 19 JUNE 2017


THE VICE PRESIDENT:  I will start with the appearances in Sydney.  Mr Bull, you appear for United Voice?


MR S BULL:  That's correct.  I also appear for the HSU.


THE VICE PRESIDENT:  All right.  Mr Christodoulou, you appear for Freemasons(sic) Disability Services?


MR C CHRISTODOULOU:  Yes, your Honour.


THE VICE PRESIDENT:  Ms Carter, you appear with Ms Walsh on the telephone for Our Voice Australia.  Is that right?


MS M CARTER:  Yes, your Honour.


THE VICE PRESIDENT:  Mr Mostafavi, you appear for ABI and the New South Wales Business Chamber?


MR S MOSTAFAVI:  I do, your Honour.


THE VICE PRESIDENT:  Thank you.  The appearances in Canberra.  Mr Kemp and Ms Freeland, you appear for the Commonwealth?


MS R FREELAND:  That's correct, your Honour.


THE VICE PRESIDENT:  Ms Langford, you appear for National Disability Services?


MS K LANGFORD:  That's correct, your Honour.


THE VICE PRESIDENT:  In Melbourne.  Mr Harding, you appear with Ms Wilson for AED, Inclusion Australia and People with Disabilities Australia.


MR A HARDING:  Yes, I do, your Honour.  Perhaps if I indicate I should seek permission.


THE VICE PRESIDENT:  All right.  Does anyone oppose Mr Harding being granted permission to appear as a lawyer?


MR BULL:  Well, he doesn't need permission in a four‑yearly review, but I have nothing to say.


THE VICE PRESIDENT:  I will grant that permission, Mr Harding.  Who would like to report?


MR BULL:  I can indicate that this was a complicated process where there was previously an award variation which was made by the HSU and United Voice.  That award variation principally was intending to ensure that the award complied with the Federal Court decision in Nojin.  Nojin is basically a decision concerning one of the wage assessment tools which found that they have a combination of competency and productivity in terms of assessing what should be the appropriate wage.  Nojin is the authority for the proposition that competency measures can offend the Disability Discrimination Act.


Competency involves, some would say, irrelevant considerations such as whether an individual can understand the broader policies and practices of an employer, and is not directly related to productivity.  That process couldn't reach any agreement.  The BSWAT, that was the subject of the Nojin decision.  The BSWAT was taken out.  Essentially the unions and the advocates sought that the supported wage system would apply to closed employment.


You have a distinction between open and closed employment.  AEDs are closed employment.  It used to have the somewhat pejorative term "sheltered workshops".  They're people with a high level of disability.  They frequently have significant intellectual disabilities and so forth.  The SWS applies to the less disabled person who will, for example, be in an organisation like this working in the mail room and so forth.  That was, if you like, the cleavage in that matter.  The advocates and the union wanted the SWS to apply generally.  The AEDs did not.  We never reached any agreement.


We're in a process now where there is going to be a modified SWS inserted into the clause that deals with wage assessment for closed employment, but there will still be all these other tools.  Many of these other tools suffer from the same problems that were identified by the Federal Court in Nojin.  The award variation is being discontinued.  The understanding was that the issues that were agitated by the award variation can be dealt with in the four‑yearly review, so here, so to speak, that's where we are.


Now, I was quite up‑front in the sense that United Voice - and I think I can also speak for the HSU, but I'll perhaps qualify whatever I say that this is principally from United Voice.  We are supportive of the award being compliant with the Disability Discrimination Act, but we are not in a position to run what is, in a sense, an extraordinarily complex arbitration examining 28 wage assessment tools as to whether the mechanism offends the Disability Discrimination Act.


We intend to - United Voice - progress a claim in relation to superannuation.  We say that the current clause is problematic.  It gives people - - -


THE VICE PRESIDENT:  Sorry, what current clause?


MR BULL:  In the award.  There is a clause where I think they get 4.5 per cent.  The problem is that the superannuation balances end up getting gobbled up by fees and so forth.  The only people who benefit from superannuation (indistinct) disabled people in the financial service industry and we want to have a clause that essentially gives them something at retirement.  I've been doing some work with Australian Super.  That's the claim we want to progress.  I have filed draft determinations and so forth.


THE VICE PRESIDENT:  Sorry, you have or you will?


MR BULL:  I have.


THE VICE PRESIDENT:  When were they filed?


MR BULL:  I just might indicate that - - -


THE VICE PRESIDENT:  When were they filed?


MR BULL:  They're filed, yes.  They were filed in accordance with the directions that have been issued.  That was done on 6 October last year.




MR BULL:  Our claim, essentially it increases the minimum mark to 450 per month and/or ensures that it's 9.5 per cent of the ordinary time earnings so it's compliant with the legislation.


THE VICE PRESIDENT:  Has that claim been dealt with in the various conferences that have occurred to date?


MR BULL:  Well, it has been discussed.


THE VICE PRESIDENT:  And, what, it's opposed, is it?


MR BULL:  It's opposed, because it's going to have a financial implication for the employers and they oppose that.


THE VICE PRESIDENT:  All right, so superannuation.  What is involved in hearing that claim, do you think?


MR BULL:  Well, I think it can be dealt with.  I'm going to get a statement from some superannuation person.  Hopefully an actuarial person.  I've got some preliminary figures and if you increase the amount by a little bit, there is quite a profound variation in terms of what they get at the end - so essentially some actuarial evidence.  I might indicate that there is another issue.  It is absurd that their superannuation has an insurance component, because the insurance component essentially is insuring against a contingency which has already been actualised.  The people in closed employment tend to also be recipients of the disability support pension, so they're already disabled.


It's absolutely absurd that they're paying for insurance when that has been actualised, so I'm attempting to get Australian Super to have a discrete super product without insurance and I'd like that to be named in the award.  It doesn't conflict with the four‑yearly review of superannuation default clauses, because it's a quite separate matter.  They're working on it, but I need to get, sort of, the product and I don't know - it seems things work slowly in the financial services industry.


THE VICE PRESIDENT:  My question is really directed to when might that issue be heard and how long might it take?


MR BULL:  Well, there is a current timetable floating around, which I don't know whether you have been provided with a copy of that.  That envisages essentially parties - this is all parties - filing material by - getting another bite of the cherry in terms of putting in variations and doing that by 31 July, then filing evidence on 25 September.  Replies - do you want to hand that up?


MR MOSTAFAVI:  Yes, your Honour.


MR BULL:  My friend will - - -


THE VICE PRESIDENT:  This is something that has been discussed by the parties, is it?


MR BULL:  Yes.


MR MOSTAFAVI:  Your Honour, I understand that Ms Wilson has a comment in relation to that.  It's simply a proposal - - -


MR BULL:  I only saw it this morning.  Ms Wilson was the original sender of the email and it has been adapted and so forth.


THE VICE PRESIDENT:  So do all the parties have a copy of this document?


MR HARDING:  I don't believe so, your Honour.


MR MOSTAFAVI:  No, your Honour.  At this stage it was a discussion between myself and AED Legal.  It has been shared with some other parties, but we were going to ventilate that and try and reach a consent position prior to this morning, but - - -




MR BULL:  I can read the dates.


THE VICE PRESIDENT:  Yes, go ahead.


MR BULL:  Just for the benefit of my colleagues in Melbourne and Canberra, essentially this new draft has any new claims by 31 July; evidence by 25 September; replies by 13 November.  I withdraw that.  Evidence by 25 September; evidence in opposition, including expert evidence, by 13 November.  I don't understand - then there is an 11th date.


MR HARDING:  Your Honour, I think the proposal originated with AED and maybe it might be simpler if I was to go through the dates to - - -


MR BULL:  Go for it, because I don't understand order 4.  It seems to be another filing of evidence.


THE VICE PRESIDENT:  All right.  We'll come back to that or do you want to deal with that now, Mr Harding?


MR HARDING:  If the Commission would be assisted, I could go through the dates and set out the reasoning behind the steps.




MR HARDING:  In light of what we understand to be the proposals that are likely to be put in relation to the variations.  I should indicate at the outset there were an earlier set of dates proposed which were then subject to a proposal from ABL, which is the one before you.  I'm instructed that those dates don't all work at our end of the table, so we would propose some others.


If I can start with setting out the reasoning behind the steps and, as I understand the situation, your Honour, there are some proposals at least from our end and also from ABL's perspective that would make very substantial changes to the modern award because they pertain to the wages assessment tools that are currently listed in clause 14.4 of the modern award.


The basis, as Mr Bull has indicated, is that there has been a Full Court decision that deals with one of the wage assessment tools that is no longer in the award, but the AED wishes to argue that all the wage assessment tools, other than the supported wage system, should be deleted from the award.  As I understand it - and ABL can correct me if I'm wrong - it wishes to propose a further wages tool.  There is likely to be some complexity, both in evidence and in law, in relation to those matters, because there are 28 wages tools that are listed and are available at the discretion of an employer according to clause 14.4.


In order to accommodate that complexity, what we had in mind was that variations to the award be proposed to the Commission by - we're happy with 31 July, so that everyone knows what is being suggested and then the steps would include supporters of a proposal filing their evidence by a certain date.  The next, paragraph 3, opponents to a proposal, file their evidence and then replies, which is paragraph 4, finally culminating in submissions so that the Commission has the benefit of submissions prepared in light of the evidence.


THE VICE PRESIDENT:  Mr Harding, why can't submissions be in accordance with the usual practice and filed at the same time as evidence?  I'm asking that because I would prefer to have the matter heard before the end of the year.


MR HARDING:  I have been instructed that the Commission was unlikely to be able to hear it until next year.  That will affect the dates.  You could probably have submissions and evidence at the same time, but the Commission won't have the benefit of submissions that deal with the evidence of the other parties in relation to a proposal.  That was the intention behind proposed paragraph 5.




MR HARDING:  Those submissions can be made orally, I accept.


THE VICE PRESIDENT:  Yes, of course.  What sort of length of hearing do you envisage?


MR HARDING:  I would have thought at least a week.




MR HARDING:  Probably a bit longer.  I'm not really sure of the outlines of the ABL proposal.  The nature of the case that will have to be presented by AED could be complex and I can't tell you at this stage the number of witnesses we would call.  I would have thought at least a week in order to provide some flexibility, but perhaps longer.  I know that doesn't provide you with much assistance, your Honour, but at this stage it's a bit difficult to gauge what is going to be required until the proposals come in.




MR HARDING:  In the event that the Commission was minded to have submissions with evidence, then 4 to 5 could just be incorporated into 2 and 3.


THE VICE PRESIDENT:  Yes, all right.  I haven't checked the other Full Bench members' dates yet, but theoretically perhaps if there was some very slight compression of a timetable, we could hear it in the week beginning 18 December.


MR MOSTAFAVI:  Your Honour, if I may - - -


THE VICE PRESIDENT:  We don't have to rush into it.  Let Mr Harding finish and we'll come back to that.


MR HARDING:  That would be fine, your Honour.  I suppose in terms of the compression of the timetable, there are some unavailabilities on our end.  I suppose it might depend on what the dates are, but we could work around it.


THE VICE PRESIDENT:  It's only simply to ensure that people have a fair opportunity to traverse the evidence‑in‑reply before the hearing starts.




THE VICE PRESIDENT:  I'm not sure that needs a huge compression, but maybe a few days.




THE VICE PRESIDENT:  Is there anything further, Mr Harding?


MR HARDING:  No, your Honour.


THE VICE PRESIDENT:  All right.  I return to you, Mr Mostafavi.


MR MOSTAFAVI:  Thank you, your Honour.  It may assist the Commission in terms of me giving an outline of some of the issues.  I agree with my learned friend's comments that it will be a matter that is complex.  We're anticipating a large evidentiary case.  In terms of witnesses, obviously that will depend on who, if any, needs to be available for cross‑examination from the other side, but at least in terms of the primary variation that we're seeking to make, that is a wage value classification tool - work value classification tool, I should say, and potentially some other proposals.


In essence, there is an affirmative case which is putting forward that tool, which is a skills based tool with classification structure baked into the actual award, but we may also be dealing with a defensive case in terms of an AED application as foreshadowed in relation to any other tools that ABI members may wish to retain.  There are some other issues there.  The superannuation issue has been flagged by Mr Bull.  There is another question of definition and coverage that I'll let Mr Christodoulou and Ms Langford speak to, but, in essence, may be an important threshold issue depending on the position of the other parties.


What I was intending to propose was that if a consent position were reached on that, that may be something that can simply be dealt with by virtue of the orders that your Honour is minded to make, otherwise it may be the subject of a more urgent application to the bench if there is an agreement on that.  Look, I agree with at least a week in terms of an estimate of how long the hearing is likely to run given the number of witnesses we're intending to be calling.


THE VICE PRESIDENT:  All right.  From your perspective - I'm not saying it will be available - is there any reason why we couldn't have the hearing in the week beginning 18 December?


MR MOSTAFAVI:  We're in the Commission's hands in relation to that.  The short answer is, no, your Honour.




MR MOSTAFAVI:  I think the primary area where time is needed is in relation to items 1 and 2 in terms of what has just been handed up, being the filing of the variation proposals, because there is quite a bit of caucusing and discussion that's required.  My friend has indicated that 31 July is acceptable and again I understand there might be some issues with the other dates, but we can come to that.  The short answer is I think we can work towards that goal, your Honour.


THE VICE PRESIDENT:  All right.  Thank you.  Mr Christodoulou?


MR CHRISTODOULOU:  I might just clarify, your Honour, that the organisation I represent is called Greenacres Disability Services.  I think you might have referred to me as Freemasons.


THE VICE PRESIDENT:  Yes.  I thought it a bit odd that you would be working for Freemasons.


MR CHRISTODOULOU:  Your Honour, I have a slightly different view based on what your Honour has said and I would also like just to clarify a couple of things that Mr Bull has outlined.  First of all, in terms of the Federal Court decision, those on our side of the fence don't believe it lends itself to that great a weight in terms of wage determination for people with disabilities.  In fact we think the primacy of what happens with wage determination for people with disabilities actually will come from this Commission and any future decision that this Commission will make, I think will set some parameters around which the Federal Court may further look at the matter.


We would definitely agree that this will be a very complex case.  It will affect 20,000 people with disabilities.  Mr Bull said they're in closed employment.  They're not in closed employment.  They're in supported employment.  There are up to 200 disability enterprises around Australia.  As I indicated, they employ up to 20,000 people with disabilities and another 3000 support workers.  The case will be very complicated because it is not just about whether a person should receive a supported wage.  It's also around the impact that that wage might have on the viability of all the organisations that run supported employment enterprises.


From our point of view, we think the Commission has got to be cautious about the timetable because we don't want this sector to be disadvantaged by not being able to put the best possible case forward to represent the interests of both the supported employees and their families, who rely upon organisations such as mine.  I would just indicate that it was also my understanding that this case would actually happen in the new year.


I would expect that insofar as the evidence that Greenacres might put forward, we will be putting forward witnesses which are people with disabilities and their carers, and other witness statements.


THE VICE PRESIDENT:  Mr Christodoulou, do you envisage making a claim or simply opposing other claims that might be made?


MR CHRISTODOULOU:  We will be supporting the ABL claim.




MR CHRISTODOULOU:  But also because the Greenacres disability wage assessment tool is now used by up to 40 other organisations, we are somewhat unclear as to how we will respond to the claim about removing that tool.  We will of course be in a defensive position in relation to that and that's where most of our evidence will be looking at.  Could I also say this:  we might be minded to amend our tool along the way and that's why we need a little bit more time to have a look at what we might do in that regard.  Having said that, we are generally okay with the initial directions that were drafted that were put forward.


I'm sceptical that we will be able to deal with this matter in a week, because the question that the Commission will need to determine if we want to hear from people with disabilities, if we want to hear from their families - it's the environment in which we deal with that.  Is it better not to hear from those people possibly in their workplaces where they feel more comfortable or do we bring them to this Commission?  It's something I think Mr Mostafavi was going to raise with the Commission.


I think a week is not going to be enough.  I suspect this case will be more in the order of three to four weeks once all the witness statements are filed.  That is only my personal view.  I haven't practised in this jurisdiction for quite a while, but given the nature of the evidence that I think will be brought forward, this will be a long and complex case.


THE VICE PRESIDENT:  All right.  Ms Carter?


MS CARTER:  I would like if Ms Walsh could address this, please.




MS CARTER:  Thank you.


THE VICE PRESIDENT:  Ms Walsh, can you hear us?


MS WALSH:  Yes, thank you.  Just a couple of issues, if I may comment, please.




MS WALSH:  That is, the superannuation issue which has been raised in discussions thus far, our position would be pretty much the same as ABI and apparently United Voice, as well.  That is that we as family carers would object or would like to see the insurance component removed because our sons, daughters and family members have in the most part intellectual disability and therefore their future needs are taken care of in relation to - and ongoing needs are taken care of.  Insurance is not needed.  I understand that all parties are working on that and we would agree with the need for the superannuation component to be reviewed.  However, where that fits in with the Commission's timetable is something that we will adhere to.


I would personally like to object to the term of "closed employment".  I have never heard the term before and if that is actually part of the legislation, then it is something that needs to be reviewed within the modern award.  Our sons, daughters and family members are not closed anywhere.  They're not even sheltered any more.  They are people who require inclusion as much as possible and are supported.  They are supported employment workers, so I take great offence on behalf of our members to the terminology of "closed".


In relation to the timetable, I think what we need to look at here is that the timetable proposed is nearing Christmas and we as family carers and workers have our hands full because the services are actually closed over that Christmas period, which would make it extremely difficult for our workers and their family carers, our members, to have adequate capacity to address the issues that they need to address.  Yes, we would have members and family workers needing to give evidence, as well.


THE VICE PRESIDENT:  Ms Walsh, when you say they're closed, what is the span of that period that you're talking about?  That is, when would it start and when would it end?


MS WALSH:  It varies within the various states, as you can appreciate.  As a member of OurVoice, I live in Bundaberg.  Well, they're generally closed the week before Christmas.


THE VICE PRESIDENT:  Week before Christmas.


MS WALSH:  If not, two weeks before, then generally don't reopen until perhaps two or three weeks into January.  Now, that will vary depending on the type of employment that particular family members are doing.  It will also vary in relation to the obligations of the families who in some cases, many cases, have other children who are at school and perhaps schedule their family holidays to concur with the closure of supported employment options for their family member who is disabled.


I think the important part going forward is that the majority of people employed in supported employment for whom we are actually advocating, do have an intellectual disability, so they are not people who can self‑advocate. They are not people who can make legally informed decisions without assistance.  We would have some concerns about that hearing date actually clashing with that, but that is a matter for the service providers because they have a better idea on that than we do.


THE VICE PRESIDENT:  All right.  Thank you.


MR BULL:  Could I just say one thing.  I apologise if I have inappropriately used a term.  I'm not an expert in this area.  I was just trying to draw a distinction between - - -


MR CHRISTODOULOU:  That's okay.  It's all right.  We just needed to clarify it.


MR BULL:  You know, for the benefit of the Commission between the two types of, I suppose, employment that are dealt with under this award.  It wasn't meant to be pejorative, but a helpful distinction.


THE VICE PRESIDENT:  All right.  Thank you.


MS WALSH:  Thank you.


THE VICE PRESIDENT:  In Canberra, Ms Langford.


MS LANGFORD:  Thank you very much, your Honour.  Look, I would like to reiterate that many things Mr Christodoulou actually spoke about in terms of supported employees, at NDIS we are actually appearing on behalf of 147 supported employment enterprises.  One of the things that I think we have all noted is that this is a very, very complex matter and I think we need to take into account in this matter the duality of the role of supported employment enterprises.  Not only are they employers, but they also are service providers, they provide support, they provide that social aspect, as well.


Our concern in putting forward evidence to this, we'll be taking into account what is going along in parallel.  At the moment we are transitioning into the National Disability Insurance Scheme.  We are moving from one form of funding where the service provider is being funded to assist where the individual will be funded.  That in itself is actually going to have some implications for what goes into the award and that will be around definitions about who the award applies to, definitions of who an employer is, definitions of who a supported employee is.  We will need adequate time to actually ensure that that evidence is actually heard.


In terms of the actual tools, one of our concerns is that we're very aware that there is going to be a modified supported wage system that will be incorporated into the award.  We are quite comfortable with that, but we also want to have on record that we don't believe that a productivity only based tool necessarily actually works for all supported employment enterprises, so we will be working on behalf of our members to ensure that the other tools are actually examined and that actually are allowed to be applicable still in the award going forward.  Thank you, your Honour.


THE VICE PRESIDENT:  Ms Langford, do you envisage that your organisation will be making any application?


MS LANGFORD:  Yes, we definitely will be making applications and it will be - - -


THE VICE PRESIDENT:  What will your applications be concerned with?


MS LANGFORD:  It will be around the definitions.




MS LANGFORD:  And the validity of the other tools in the award.  Also we will be making some applications around superannuation.


THE VICE PRESIDENT:  All right.  When you talked about sufficient time, what did you have in mind?  Were you implying that the proposed program would allow insufficient time or what was that directed to?


MS LANGFORD:  Your Honour, we have actually been under the impression that this actually wouldn't go to a full hearing until early next year.  Because I will be having to consult 147 employers who employ, you know, close to 20,000 people, that's going to be a lot of people that we will need to consult with, so we will need sufficient time to actually be able to gather and test the applications that we will be putting forward.


THE VICE PRESIDENT:  All right.  In relation to Mr Christodoulou's comment flagging the possibility of having to go out to workplaces to hear evidence, do you see any merit in that or do you see that as a real possibility?


MS LANGFORD:  Look, I think that that is a very valid way of actually progressing this.  I think it will provide the opportunity for people to actually meet some of the supported employees and to actually have the opportunity to understand some of the concerns that we will be putting forward (a) in terms of the actual supported employment environment, (b) in terms of the duality of the role that a supported employment enterprise actually plays within our community.


THE VICE PRESIDENT:  All right.  Do you yourself have any estimate as to the time you think the case might take?


MS LANGFORD:  Your Honour, I'm not experienced in this avenue.  I would say at the very least a week, but I would probably envisage a little bit longer.  We will be hearing from a lot of people.  You know, my colleagues have actually indicated that we will be gathering evidence from, you know, people with an intellectual disability, from parents, from carers, as well as employers, so we need to make sure that there is sufficient time for these parties to actually be heard.


THE VICE PRESIDENT:  All right.  Thank you.  Mr Kemp or Ms Freeland?


MR KEMP:  Thank you, your Honour.  As Mr Bull mentioned, there has been work done around modifications to the supported wage system under the Supported Employment Services Award.  Proposed amendments have been provided to your chambers, I believe, by Booth DP.  The Commonwealth has been assisting the parties to draft those amendments.  However, the proposal was made by United Voice and Mr Bull.


The Commonwealth doesn't envisage providing specific submissions on issues, although it may be that the Commission requires some evidence around Commonwealth funding of supported employment, transition to the NDIS and so forth, and the Commonwealth would be willing to provide that evidence, but doesn't seek to make specific submissions at this time.


THE VICE PRESIDENT:  Thank you.  Mr Kemp, I have been supplied with a document from you referring to a number of agreed amendments, so where were they up to?


MR KEMP:  We drafted those on behalf of the parties.  I'm not sure that the parties have formally agreed to those amendments at this time, so the Commonwealth is just waiting on advice from the Commission whether or not those amendments would be supported.  We will continue working through the process required to implement those amendments if they should be agreed by the Commission.


THE VICE PRESIDENT:  Well, have the other parties seen those amendments and, if so, is there agreement about them or not?  I'm noting that Mr Kemp made reference to a possible start date of 1 July 2018, so perhaps it's not absolutely urgent.


MR BULL:  I understood - and correct me if I'm wrong - that was something that was agreed in the conferences that were conducted by Booth DP.  There is technical detail that needs to be resolved.  The Commonwealth was doing that, but in principle there was agreement to insert a modified SWS into clause 14, which deals with the current wages estimate tools.


THE VICE PRESIDENT:  Does any party take a different view from that?


MR CHRISTODOULOU:  No.  I think that what Mr Bull has said is correct.  I just want to put on record though our position from Greenacres is we don't oppose the changes going through.  We don't want it to be seen that our agreement, so to speak, by not opposing, is some vindication that that particular model of wage assessment is the correct one.


MR BULL:  Can I just make two comments about what has been said.  The first relates to the - I'll call it the Nojin issue.  This issue has been cooking, for want of a better term, for the last three years.  If any party here says that they're unprepared, they're unfamiliar with the issue, they haven't consulted, they have had effectively three years to do that, because there has been a process associated with the award variation where this issue has been sort of done over and sort of discussed and so forth.


There is perhaps a threshold issue - look, I think if you're going to look at every single wage assessment tool and you're going to have evidence from people who are covered by that tool, frankly, it will take forever.  One of the problems with the conference is that there was unwillingness to accept as a matter of general principle that Nojin had any broader application.


Now, this Commission, in terms of conducting four‑yearly reviews and also generally in relation to making awards, has an obligation to ensure that awards comply with human rights and broader legislation.  In relation to, I suppose, the Nojin issue, it could be dealt with by way of a threshold issue of, frankly, just whether that decision has general application for the other tools.


The superannuation issue, I'm not going to describe it as simple, but it's a certainly more discrete issue and it's a more familiar issue in terms of the type of work that this Commission deals with.  I would have thought it can be dealt with almost in a day.  I hope to have this product which doesn't have insurance, which should hopefully deal with some of the issues.  It's still going to have some cost implications.  There will be an issue about capacity to pay, but if we can get a product with the superfluous insurance products, it will be a more palatable thing for the employers.


I'm agreeing with what you seem to be intimating, in that this matter should get on and should get some dates.  It's complex but it's not complex, that's what I'm trying to say.  There are some threshold matters that should be determined in terms of the Commission's broad responsibility to ensure that awards comply with human rights and so forth; whether this award is compliant.


THE VICE PRESIDENT:  Does anybody else want to say anything about the amendments that have been advanced by Mr Kemp?


MS WALSH:  It's Mrs Walsh here, your Honour.




MS WALSH:  From our perspective, we were a party to the conciliation and we would agree with Mr Christodoulou's previous comment that we are familiar with what's going forward; we support the inclusion as proposed.  However, we would not want it to be seen as being accepted by anybody, including the Commission, as the only tool, because the other tools have not yet been tested.


THE VICE PRESIDENT:  All right.  Thank you.


MS LANGFORD:  Your Honour, it's Kerrie Langford here.




MS LANGFORD:  Look, I would like to also endorse what Mrs Walsh has actually just said.  We do agree and are supportive of the modified SWS going forward, but we don't want it to be seen as the only tool.  As I stated before, we're not convinced that a productivity only based tool is necessarily the right tool in all situations in supported employment.


THE VICE PRESIDENT:  All right.  Thank you.


MS WALSH:  May I add a further comment, your Honour?


THE VICE PRESIDENT:  Can you just hold on one second, Ms Walsh.  Yes, go ahead.


MS WALSH:  I do have another engagement, so I can't stay much longer.  I did want to comment on the issue of visiting on site and I guess the timing that the Commission will in fact decree.  In a nutshell, families - and most of these workers do depend on their families - usually find anything that's scheduled between school holidays is difficult for them to attend.


Many of our members live away from the central parts of the state and therefore we would have - as an unresourced organisation - travel costs if we wanted to get some of our family carers and workers to attend a hearing, so - - -


THE VICE PRESIDENT:  Ms Walsh, can I indicate I have heard you loud and clear about that point and I understand it completely.


MS WALSH:  Thank you very much, your Honour.


THE VICE PRESIDENT:  All right.  At this stage I will need to consult with the other members of the Full Bench about what directions should be made and what the timetable should be.  Booth DP, who is on the Full Bench, is currently overseas and won't be back until approximately 30 June, so there won't be any directions issued before then.  Can I indicate that the parties should proceed on the assumption that the Full Bench will make direction 1 in the draft orders that have been handed out.  That is, the parties should proceed under the assumption that they will be required - if they want to seek a contested variation to the award - to file a draft determination by 31 July and then beyond that point the parties can await the further issue of directions from the Commission.


I can indicate that, broadly speaking, the directions are likely to more or less reflect at least 1, 2, 3 and 4 of the document that has been handed up, but I'll have to consider closely the points being made about when the case should be heard, how long it should take and whether it involves the Full Bench attending particular workplaces for the purpose of receiving evidence, which will obviously affect the timing integration of the case.  Is there anything further that any party wishes to raise at this stage?


MS WALSH:  No, thank you, your Honour.


MR HARDING:  No, your Honour.


THE VICE PRESIDENT:  Thank you for your attendance.  I will now adjourn.

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