TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1057545
VICE PRESIDENT HATCHER
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
Supported Employment Services Award 2010
9.17 AM, FRIDAY, 20 DECEMBER 2019
THE ASSOCIATE: Matter MA2014/286 for conference.
THE VICE PRESIDENT: Yes, can I take the appearances please, in Sydney? So we've got Ms Walsh for Our Voice Australia.
MS M WALSH: Our Voice Australia.
THE VICE PRESIDENT: Mr Donne from Endeavour Foundation?
MR A DONNE: Correct.
THE VICE PRESIDENT: Mr Christodoulou for Greenacres?
MR C CHRISTODOULOU: Thank you, your Honour.
THE VICE PRESIDENT: Ms Langford for NDS?
MS K LANGFORD: Yes.
THE VICE PRESIDENT: Mr Ward and Ms Slater, I think, for ABI and New South Wales Business Chamber. And Mr Sotiropoulos and Mr Brown for the Department?
MR G SOTIROPOULOS: Yes.
THE VICE PRESIDENT: Mr Bull for United Workers Union?
MR S BULL: Correct.
THE VICE PRESIDENT: Is that all the appearances in Sydney? All right. And in Melbourne Mr Clarke, you appear for the ACTU?
MR T CLARKE: Yes.
THE VICE PRESIDENT: Ms Liebhaber, you appear for the HSU?
MR R LIEBHABER: Yes.
THE VICE PRESIDENT: Ms Wilson and Ms Davies, you appear fro the AED Legal Centre?
MS K WILSON: Yes, that's correct.
THE VICE PRESIDENT: All right. So the purpose of today is to discuss the implementation of the Full Bench's most recent decision. I have distributed a proposed agenda for today's conference, I hope parties have had a brief chance to look at that. Is there any item that parties thing should be in the agenda that is not there?
MR WARD: Coverage, your Honour.
THE VICE PRESIDENT: Coverage? Yes, all right. All right, we'll put that as number 9 on the agenda. Anything else? All right.
Well, unless any party wishes to put anything on record, before we start, I propose simply to start going through the items in this agenda and seeing what people have to say. So does anyone want to say anything, on the record, before we begin? I'll take that as a no.
So the first thing is the general timetable, which is at paragraph 380 of the decision. Can I just indicate that n respect of the final determinations, which are referred to as being made by 30 October 2020, of course the determinations relating to the rights at work clause and the superannuation variation will need to be made before then. So that's referrable only to the wages structure.
The other comment I wish to make is that one of the guiding elements in the timetable is that unless the government grants her an extension, Booth DP faces statutory retirement in November next year. So that's one of the elements that need to be taken into account. And while I'm there, I should note that Booth DP expresses and wished to convey that she would have liked to be here but she has another pressing commitment.
So does anyone want to say anything about that timetable and suggest it be amended or corrected in any way, or do they think it's unrealistic?
MR WARD: In relation to the timetable, as a whole, we have nothing other than support for it. There's just a question, I think, about when the trial might commence.
THE VICE PRESIDENT: Yes?
MR WARD: Your Honour, there's been some dialogue between the DSS and the NDS about whether or not 1 May would be a more suitable date. Can I just say that we're relaxed about it but there does seem to be some legitimacy to suggesting that maybe a 1 May date might be more realistic in what the parties have got to sort out.
THE VICE PRESIDENT: All right. If that's the case, and anybody can address this, how might the timetable be modified to accommodate that within the end point constraints?
MR WARD: Yes. Our issue is probably we wanted most of the rest of it to stay the way it was and just push the trial back. I'm not sure if that's achievable.
THE VICE PRESIDENT: Well, it might be jumping ahead, but we've put aside three months for the trial. It seems to me that the trial would, at least, require these elements. First of all, the grading of employees who are to be the subject of the trial, dealing with any disputes or appeals that might relate to the grading of employees. Then SWS assessing them, using the new methodology.
In the proposed timetable we've suggested a three month period to allow that to occur. Is that too long or too short, or do parties have any views about that?
MR WARD: Sorry, your Honour, would your Honour prefer me to stand?
THE VICE PRESIDENT: No, no, just stay seated.
MR WARD: A lot will depend on, with respect to the assessors, a lot will depend on the availability of assessors. If I can just give a general sense of the scope of the trial that the employers have envisaged at this stage?
We're anticipating, at this stage, potentially, nominating through the NDS 20 employers in various states, in various forms of commercial activity, also representative of both city and regional operations. Our anticipation, at this stage, is that might involve upwards of 500 employees.
Now, I appreciate that there might be a sense that the scope of that might be too ambitious but, at this stage, we think it's workable, but we've done that in the context of a three month period.
We think, subject to clarifying some of the definitions in the wage structure, the first element of classifying people into grade A and grade B will not take a tremendous amount of time. It's probably more then making sure that we've got sufficient time for the DSS assessors to get around to do the what I'm now going to call the FWC SWS part of the equation. It's probably more in their hands. I suspect three months is - you couldn't do it in anything less than three months.
THE VICE PRESIDENT: That's premised on there being 500 - - -
MR WARD: Yes. And if that's too ambiguous then we'll obviously contain it.
THE VICE PRESIDENT: Does the Department want to say anything about that?
MR SOTIROPOULOS: I think what the Department would say is we were probably envisaging a similar size, in terms of number, to get a representative sample, given the extent of the decision and the things that need to be covered.
The other comment I would make, I think three months might be a bit short, on 500. Previously when we did a trial, in 2016, we allowed three months, but it only covered 200 employees, so it is an issue of accessibility to assessors.
The other thing it may turn on is where the Commission may land, in terms of coverage, and the definition of supported employee. As has been noted in our submission, the definition of 'supported employee' currently sits within the context of the Disability (Services) Act, the way we have traditionally funded Australian disability enterprises. There is a change, given the way the NDIS and the NDIA is going to be funding employees, so there is a question and our mind's still open around coverage. So that may be something that could also turn the decision.
I would reserve judgment on that, but I do think three months for the trial, as envisaged in the decision, may be short, may be a bit too short for us.
THE VICE PRESIDENT: In terms of the lead time to the trial, leaving aside issues concerning finalising the wage structure we're going to trial, how long would the DSS need to prepare for that, noting that is lining up the inspectors, I suppose there might be some training required for the new methodology, there might need to be a modified handbook, or something like that?
MR WARD: Again, respectfully, in terms of the previous experience, in 2016, that trial was stood up in five months. So, again, I think that's - hence why, in our submission, we propose maybe a 1 May commencement date would be more realistic and achievable.
THE VICE PRESIDENT: All right. Does anyone else wish to contribute to this discussion about the timetable? No? All right.
So that would put the trial back from 2 May to 31 July. So the report would be in August and we could put the hearing at the end of - perhaps the beginning of October. Does that sound workable?
MR WARD: Yes.
THE VICE PRESIDENT: All right. We'll proceed on that basis. I can indicate that it probably won't be till the new year, but what I propose to do is issue an interim statement recording the outcome of this conference so that we can work from there. There'll probably be follow up conferences. I can indicate that if the trial is to start of 1 May, then the 31 January date might be possible to be pushed back somewhat too.
The second item is, and I put this up front because it has an earlier operative date, is the rights of work clause. Are there any issues about the drafting of that clause, or the operative date?
MR WARD: Not from our perspective.
THE VICE PRESIDENT: No.
MS WALSH: Certainly not from us. If I could just add that, on behalf of our workers and our families, that we see that as being a safety net which might address some of the safety net issues in other submissions.
THE VICE PRESIDENT: Yes, all right, thank you. So - yes?
MR SOTIROPOULOS: Respectfully, from a Social Services perspective, again, I just put on the table that concept of the definition of 'supported employee' just getting clarity around whether that is restricted to Australian disability enterprises, in their current context, noting that the NDIA has publicly stated that it is looking to broaden that definition of supported employment in the way they fund.
MR WARD: I think there's an anxiety, your Honour, that there could be some coverage creep into what otherwise might be described as the private sector, and that's the anxiety everybody's sort of dancing around a little bit.
THE VICE PRESIDENT: All right. We'll come back to that. But within the scope of the current award, leaving aside the terms of the coverage clause, we can proceed to issue a final determination to give effect to the rights of work clause? All right.
All right, the superannuation clause. First of all, I just want to deal with the operative date. Does anybody want to take any strong issue with that?
MR WARD: Your Honour, we've made submissions on potentially splitting the implementation. I understand that NDS are also in discussions with the DSS about that issue and Ms Langford might address that. But I also would indicate that there might actually be a practical issue with the drafting that needs to be resolved as well.
THE VICE PRESIDENT: All right. Ms Langford?
MS LANGFORD: So we actually had some discussion the other day, with DSS, and one of the proposals we've actually put to them is that if they will fund year 1 of the difference between what providers are paying now and what they would be paying in the future, then we'd be happy to go with the earlier date, just in terms of payment.
THE VICE PRESIDENT: Yes. So from the Department's perspective?
MR SOTIROPOULOS: We couldn't commit to that - - -
THE VICE PRESIDENT: No, I'm not saying you'll commit to it today, but when might the Department provide a response to that position?
MR SOTIROPOULOS: Given the Christmas period, I wouldn't think it'd be before February.
THE VICE PRESIDENT: All right. So it's the position about operative date. We'll have more conferences in the new year, obviously, that by some time in February, Ms Langford, you'll hopefully have a response from the Department and then we can usefully finalise the operative date at that time?
MS LANGFORD: Absolutely, yes.
THE VICE PRESIDENT: All right.
MS LANGFORD: Just while we're still on the matter of superannuation - - -
THE VICE PRESIDENT: Yes. Well, I wasn't going to move on, it might be the same issue, and I only noticed this, Mr Bull, you might listen to this, that I noticed that part of the - there is a problem with your claim, in that it's a relationship between $15 a week and $450 per month?
MR BULL: Yes, that's the issue.
MS LANGFORD: Yes, that's the issue, yes.
THE VICE PRESIDENT: So what it means is that $450 a month is $112 something a week. What it means is that once you hit the threshold your contribution actually goes down and not up. That is, the $450 was not adjusted in line with the other amounts. I think the idea should be that once you hit the threshold your super shouldn't go down, it should be a continuation from 15. I haven't actually worked out what that amount is.
MR BULL: One of the issues is the general threshold has never been indexed.
THE VICE PRESIDENT: No. Well, we adopted the terms of your claim, Mr Bull, but I only realised what the problem is after - - -
MR BULL: Yes, I know. I thought of it some time ago but then I moved on to other things and forgot about it.
MR CHRISTODOULOU: Your Honour, Ms Langford does have a solution.
MS LANGFORD: I actually do have a solution. We have some suggested wording and the suggested wording (a) we recommend that the $450 per month threshold is removed and that the new wording would be, "Superannuation contributions for employees with disability will be either 9.5 per cent of their ordinary time earnings or $15 per week, whichever is the greater".
THE VICE PRESIDENT: Well, that sounds really sensible. Well, does anyone with to be heard against that proposition? No? All right, I think that - I'll speak to the Full Bench about that, but that seems very sensible. All right, are there any other issues about superannuation? All right.
So now we'll go to the wages structures and, first, I want to deal with grades 1 to 7. So what, if anything, do parties want to say about that?
MR WARD: Your Honour, can I just indicate that from the employer's perspective, in Sydney, subject to adding in some additional award classifications which we put in our written submission, we have nothing further to say in relation to grades 1 to 7. We're comfortable with them.
THE VICE PRESIDENT: All right.
MR CLARKE: I had something I wanted to say about that, your Honour.
THE VICE PRESIDENT: Yes. Just hold on a sec, I just want to make a note of that. Yes, Mr Clarke?
MR CLARKE: It was a point about we referred to in our email about mandatory qualifications and indicative tasks. The issues with the introduction of mandatory qualifications stood out to us because the basis of the change isn't entirely clear, from the decision and although there's - paragraph 375 indicates, generally, in relation to the proposed classification structure, that there be some grandfathering, no employee would suffer a reduction. That statement was made in the context of a discussion that was focused on the wage rates to tailor jobs for people with disabilities and we weren't sure just whether that grandfathering principle would apply to everybody.
But putting the issue of grandfathering to one side, if you proceed with this change to introduce mandatory qualifications, if you - - -
THE VICE PRESIDENT: Mr Clarke, can you just give me a concrete example of what you're talking about there?
MR CLARKE: Yes, sure. So in grade 4 of the schedule, as it exists currently, the extent of a reference to any qualification, even if it is a qualification, is in the engineering stream, and it's merely general welding to AS1554 standard, at a basic level. And without the AMLEU here, I can confidently admit that I don't know what that means, but it's certainly not an AQF1, 2, 3, 4. There's also, sorry, a reference to a licencing or certification for forklift driving range and driving within the engineering stream, referred to in grade 4. But in your proposed determination at grade 4, it states that, "The worker will hold a qualification at or equivalent to AQF2 or above.
Now, many of the reference qualifications, if you want to call them at, in the proposed determination for grade 4, do not require mandatory qualifications and, to the extent that they do, it should be inferred that a classification - it shouldn't be inferred that a classification should be required for work done under the SES Award where that leading text is that, "It may include performance at work included in the following classifications", rather that it's saying that's the following classifications. Because it can't be assumed that "work included" means all of the work included in that reference classifications.
So I'll take you to some concrete examples of that where grade 4 mentions particular qualifications. The laundry worker at level 3, in the Dry Cleaning and Laundry Award, mentions no mandatory qualifications or any qualifications at all.
Food Beverage and Tobacco, at level 4, is satisfied either by a Cert IV or, "Equivalent recognised experience or industrial experience, training or prior learning experience and/or skills to level 4".
Similarly gardening and landscaping services, at level 3, which is listed as a reference - - -
THE VICE PRESIDENT: Mr Clarke, I understand the point. So just so I understand the scope of the problem, so this issue doesn't arise in grades 1, 2 or 3, is that right?
MR CLARKE: No, it's from grade 4 onwards that you see it, yes.
THE VICE PRESIDENT: All right, I understand that. Anything else?
MR CLARKE: Other than to point it out, the issue is - it's basically the same issue with grade 4 and 5. It's not so much an issue with grade 6. With grade 7, it's a slightly different issue because grade 7 currently says that if the person were to hold a trade certificate or equivalent qualification, experience and skill level, "And have completed formal training and personal supervision", whereas in the proposed determination there's an additional level of details where it says:
Where the qualification is at or equivalent to AQF4 or above, of which one-third of the competencies are related to the supervision or training of employees.
So it's a slightly different point, in the sense that there are still mandatory qualifications, but how they're made up is changed.
As I say, it's not just an issue about grandfathering, it's an issue about the new workforce having different rates of pay that I don't think was the type of issue about the workforce having different rates of pay that was expressly intended in the decision. Although the funding arrangements here are complex, I didn't understand there to be a conscious desire to have the higher skilled workers reduction in wages be a cross-subsidy for the costs of the less skilled or less productive workers at the lower end of the classification system.
THE VICE PRESIDENT: All right. Does anyone want to respond to that? I mean that seems to be, at least in respect of the contradiction to the qualifications and the reference classifications that seems to a problem, but - - -
MR WARD: Your Honour, it might simply be resolved by, in the relevant classifications, instead of saying "will hold", it might just simply say "may hold". That might solve the ACTU's concern, I don't know.
THE VICE PRESIDENT: Mr Clarke, can I, since you raised it, ask your organisation to propose a drafting modification which might satisfy the concern that you've raised? I think you understand, broadly speaking, the intend of the classification. Are you able to do that? I'm not saying before Christmas.
MR CLARKE: Sorry, there's a - sorry, there's a second issue with the classifications as well.
THE VICE PRESIDENT: Yes?
MR CLARKE: In that you're moving to a model of looking at from having some fairly clear indications of the nature of the work that's performed, in the schedule, to moving to a model where you're just having these reference qualifications. Post award modernisation and reviews and everything else that's happened in between, and the award stripping exercises of the 2000s, you're in a situation where there's actually a lot more meat in schedule B, as it currently stands, to describe types of work than you get by cross-referencing across to other classifications in extant awards, as those classifications are describe now.
So I appreciate that the intent appears to have been to list areas of industry work where employers in the sector might provide such work, but it may, and this is a point that the employers may wish to address, be of more assistance to actually have indicative work described there, rather than merely address this issue. And I'm happy to come at the things separately, but I just thought I should put that on the record.
THE VICE PRESIDENT: That's noted, but I can indicate we're not going back to the way it was. That previous list, as I discovered, was shrouded in the mists of antiquity, in fact pre-dated award simplification.
MR CLARKE: Well, it need not be that list, but I'm just wondering whether a list might be more useful to the sector than references to other classifications.
THE VICE PRESIDENT: All right. I think, Mr Clarke, you can assume we're not going to do that, but it's noted.
MR CLARKE: Okay.
THE VICE PRESIDENT: But in respect of the first issue, can I ask you to see if you can draft something which would, at least, address that matter?
MR CLARKE: Yes.
MR CHRISTODOULOU: Your Honour, just on the one issue that Mr Clarke raised, about - it's not our intention, it's certainly not Greenacres intention that any of the higher classifications would somehow subsidise anything at the lower end. So I just want to be clear that if that was the - if that's what's happened, that would - we'd be happy to resolve that, but that's not the intention, I'm sure.
THE VICE PRESIDENT: That's not our intention, I don't understand that to be anybody's intention.
All right. So Mr Clarke, would you be able to do that by the end of January?
MR CLARKE: I believe so, yes.
THE VICE PRESIDENT: Again, if the ACTU wishes to consult with various employer groups and seek to achieve a consensus change to that, that would be also welcome. Are there any other issues about grades 1 to 7?
MR SOTIROPOULOS: Your Honour, just one, from our perspective. It would help the DSS, in terms of conducting the trail, if there was a bit more clarification about what the Commission would be envisaging would fall between - within the numbered versus the lettered classifications and whether there was any further guide the Commission could provide, with regard to that?
THE VICE PRESIDENT: We'll certainly come up to levels A and B next.
MR SOTIROPOULOS: Yes, okay.
THE VICE PRESIDENT: But I think we've made it clear that grade 1 is an introductory classification but certainly, in respect of grade 2, we made it clear, I think, in the decision, that we're trying to avoid a position whereby the simple identification of the performance of one list of indicative tasks would lead to a person being entitled to the full rate, in circumstances where that is not, in concept or practice, the way modern awards are interpreted or applied. Our attempt to reference other awards, it is meant to inform the way in which those grades will operate. That is, they're meant to be applied in the same way they're applied in other awards, for the same work in other industries. That's probably as much as I can say about those.
All right. So turning to grades A and B, so there's obviously a variety of submissions about that. Who would like to start about that?
MR WARD: I'm happy to, your Honour, if it's convenient. For our part, there's probably three issues, and I'll deal with the simple one first, raised also by the DSS, and that is the expression of what we might describe as the minimum minimum, which is in D.4.1(b).
THE VICE PRESIDENT: Yes, I can indicate, I meant to raise that before, that is an error, so that should say $3.50. We will correct that.
MR WARD: That's what we thought. We, essentially, have two issues, which we raise simply to try and assist in progression to the trial. The first issue is there's been a lot of debate about the phrase 'sequential actions', and, for our part, we feel that some definition of that would assist in the trial, and possibly some examples.
I have to concede that amongst the employers in the room there is even still some debate about what a sequential action might be and we might need to get into a little bit of detail, or the Bench might need to clarify for us what was meant by that. So that's issue number 1.
The second issue is that the other distinguishing feature between grade A and B, when you get past sequential actions, appears to be either regular monitoring or constant monitoring. We do believe there are examples in the industry where somebody, potentially, could do more than three sequential actions but still require constant monitoring, and we're unclear as to how one reconciles that conflict.
So they're the two practical issues that we see arising from how the structure has been articulated that we put before the Commission to seek some further guidance on.
THE VICE PRESIDENT: Look, the Full Bench is not wedded to the word 'sequential', that's the first ting. What we had in mind was some of the things we simply saw on the inspections. That is, for example - - -
THE ASSOCIATE: I think we've lost Melbourne.
MR CHRISTODOULOU: Your Honour, while we're waiting, would your Honour be open to us giving - I've actually brought some examples where we can show a task.
THE VICE PRESIDENT: Probably yes, but let's wait until we - - -
MR CHRISTODOULOU: Absolutely. I just wanted to - I didn't want to raise it while others were there, I just wanted to check before I'd raise it more formally.
MR BULL: We can talk about super, briefly.
THE VICE PRESIDENT: No, we can't. So can you hear us in Melbourne? Can you hear us in Melbourne now.
MS WILSON: Yes, we can.
THE VICE PRESIDENT: Sorry, I'm not quite sure at what point we lost you. Mr Ward had been addressing the definitions of grades A and B, and he had raised two issues. That is, firstly, the use of the word 'sequential' and how that might be defined and, secondly, the expression 'constant monitoring in grade A' and Mr Ward was pointing out that there might be persons who perform more than three sequential actions, in grade B, who, nonetheless required constant monitoring. Is that accurate, Mr Ward?
MR WARD: Absolutely, your Honour, yes.
THE VICE PRESIDENT: Yes, all right. I'd indicated that the Full Bench is not absolutely wedded to the term 'sequential' but it was meant to convey things we saw in the inspection, whereby an employee, at a given workstation, would perform a number of specific tasks in sequence. For example, we saw someone dealing with cutlery, and that might involve washing the cutlery then sorting it then doing something else. That would be three sequential actions.
Mr Christodoulou, you wanted to flesh that out a bit, by reference to some examples?
MR CHRISTODOULOU: If I could, your Honour. This is only just to clarify, and it's hard for - sorry, your Honour, it may be hard for your Honour, and certainly those in Melbourne won't be able to see this, but this is one of the - - -
THE VICE PRESIDENT: Just hold on, we'll see if we can zoom in on you.
MS LEIHABER: We can see.
MR CHRISTODOULOU: You can see?
MS LEIHABER: Yes, we can.
MR CHRISTODOULOU: So this is one of the simple tasks, at Greenacres, there's a jig. So a person picks up what you might call an axel, puts it in a roller, so I'm presuming that's two sequential actions, or one. They then get this part of the component and they lay it there, that's three sequential actions. Put the roller in, there's four sequential actions. Fold it down, that's five. And then they put it over into another box. Now, that's six sequential actions.
THE VICE PRESIDENT: I understand the problem. I mean I would have thought it's two or three, but - - -
MR CHRISTODOULOU: And that's then magnified when you look at other examples I've got, when you're putting stuff in boxes. There could be one thing put in a box, there could be six things. They're all fairly simple, they're all stationary and, in some cases, you might have one employee only putting one thing in a box, when we're run out of product to put the other things in and they'll stay aside. So there is an issue with sequential actions, in my view, as distinct from simple tasks.
THE VICE PRESIDENT: All right.
MR WARD: We're not seeking to debate the judgment of the Bench, we're just seeking to find some way to clarify so that when we enter the trial we can do so with some confidence, your Honour.
THE VICE PRESIDENT: No, that's fine. So does anyone else wish to engage with this issue?
MR CLARKE: Well, only to observe that what's just been demonstrated is equally capable of falling in to the description of repetition work on single purpose machines, for the purposes of C13 in the Manufacturing Award, or a basic task, at skill level 1 in the TCF Award, of uncomplicated tasks which are easily involved and involve little decision-making of whether machine or non-machine, both of which are paid a the national minimum wage rate or higher.
THE VICE PRESIDENT: What's the purpose of that submission, Mr Clarke?
MR CLARKE: That it's work within in the scope of what might be required and solely required of a worker in a much higher pay grade.
THE VICE PRESIDENT: Yes. So are you assessing some definitional addition is required to deal with that issue?
MR CLARKE: Well, at least, yes.
THE VICE PRESIDENT: Which would be what?
MR CLARKE: I don't know yet. I mean I understand the broad point that what we're trying to get at, what the Bench is trying to get at, with level A and B, is to capture the notion of a job that wouldn't exist, but for the fact that it was tailored specifically for the needs of an individual.
THE VICE PRESIDENT: So that's the gateway requirement. So unless that gateway requirement is met, then you're right, then we'd look at the main classifications.
MR CLARKE: Yes.
THE VICE PRESIDENT: So first of all we find out whether that gateway requirement is met and then if it is, it's a case of whether it's A or B.
MR CLARKE: Yes. I was just - I mean sort of without wanting to cut across anything anybody - more fundamental that people might want to raise about this structure, I think that's where, I suppose, this concept of work value discounting is coming in, in this A and B. There are other more commonly used expressions in awards which also appear in A and B, 'monitoring' and 'supervision'. One might think that a work value discount, to want to sort of red circle that, you might be dealing with - I didn't see the evidence, but if you're talking more about employees not only being supervised but being guided or assisted, that that might be an element that maybe more properly reflects what you're trying to get at.
But, as I say, I didn't see the evidence, I didn't see how these people work. I'm a bit of a Johnny come lately to this, and certainly I think that there are deeper issues with the structure that were elaborated on in the submissions of the AED Legal Centre.
THE VICE PRESIDENT: All right. So, Mr Ward and Mr Christodoulou, I'm inclined to let ADEs have a go at solving this problem and then - by consensus, and then the Full Bench considering what you can some up with. I think you have an understanding of what we're trying to achieve. So how long - I mean I can give you time today to do that. How far down the road are ADEs, generally, in discussing that?
MR WARD: We've had a fair amount of discussion over potential examples and issues. I have to be candid and say that we haven't travailed possible solutions at this stage. It would be unfair to suggest that we might be able to bring that back by close of business today but, subject to a reasonable timeframe, we can certainly bring something back to the Commission to try and deal with that issue.
MR CHRISTODOULOU: Your Honour, there actually - I haven't had an opportunity to speak to Mr Ward about this, but there has been at least some discussion amongst ADEs, over the last week or so, that we haven't been able to provide to Mr Ward, because we just weren't sure whether there would be an opportunity to present any alternative.
So to the extent that we could have some time, I'm not saying we would come up with something, but we should attempt to have a discussion today about it, while we're here.
THE VICE PRESIDENT: All right.
MS LANGFORD: Sorry, and just on that point, your Honour, from an NDS position that we would also need to have a discussion with some of our other members, just to make sure that we do cover the broad depth and range of the different business units that people do. So I'd need to take it a little bit further than just today to actually capture that.
THE VICE PRESIDENT: All right. Well, I'm just trying to relate this back to the timetable for the trial. So there's a consensus the trial should start on 1 May. When, for practical purposes, would we need to finalise the definitions of grades A or B to allow that trial to occur on that day?
MR WARD: Our issue would be making sure that we've publicised the final trial determination. Certainly if it's publicised by 1 March and it starts in May, in terms of the grade A and grade B, I think that would be fine. I don't think we necessarily have to have it out by 12 January, or something like that.
THE VICE PRESIDENT: My current inclination is to have the matter come back for another conference perhaps in the first week of February?
MR WARD: That would be good, your Honour.
MS LANGFORD: That would be good, your Honour, thank you.
THE VICE PRESIDENT: Now, then there's the issue of the amounts, that is, the dollar amounts assigned to these grades - - -
MR CLARKE: Before we leave that, your Honour - - -
THE VICE PRESIDENT: Yes, Mr Clarke?
MR CLARKE: - - - if I may. I just foreshadow, and perhaps Mr Ward's best placed to appreciate this submission, that whilst those who work in and with the sector will no doubt have a good way of describing the nature of the work that's preformed there. The other side of the coin, in all of this, for us more broadly, is the creep through the system, through the wages system, of the idea that where an employer only requires an employee to do a subset of tasks, they can then discount their wage. Now - - -
THE VICE PRESIDENT: Mr Clarke, the decision doesn't say that and nobody, apart from you and perhaps the HSU and the AED Legal Centre has suggested that, so I don't know why it keeps coming up. But you keep saying that it's a precedent for something else, maybe it will become a precedent for something else, but I don't hear anybody saying that.
MR CLARKE: No, but we - I think the process would certainly be easier to navigate if it was approached in the drafting, on the basis that it was not an attempt to do that.
THE VICE PRESIDENT: I'm not sure what that means.
MR CLARKE: I think that's all I can say about it, your Honour.
THE VICE PRESIDENT: I mean I think I've said this earlier, this decision only relates to the very unusual circumstances of this award and I can say, on behalf of the Full Bench, so far as we're concerned it has no implications or precedent value for any other award.
MR CLARKE: I appreciate that, thank you, your Honour.
THE VICE PRESIDENT: I would say this to the participants in Melbourne particularly, I mean I can understand that parties might have issues of principle with some of the conclusions that the Full Bench have reached, and they may wish to maintain those positions of principle but, at the same time, if the parties wish to participate in trying to give practical effect to our decision, then obviously their participation will be welcomed. And the process I've talked about, in terms of solving this problem, would be assisted if the parties in Melbourne would become involved. But, ultimately, that's a matter for you.
MR WARD: Your Honour, before you come onto the wages issue, can I just - do you want the ADEs, when we come back to you, to try and address this conflict between 'constant monitoring' and - - -
THE VICE PRESIDENT: Both of those problems - - -
MR WARD: We can attend to that.
THE VICE PRESIDENT: Thank you.
In respect of the wage rates, does any - I mean obviously some parties would say they're too low and other parties might say they're too high, but what I'm interested in is whether the - if any party has any interest in the trial, because it's only a mathematical exercise, trialling different options for the wage rates?
MR WARD: We haven't discussed doing that. I think a lot with depend on how we settle on the sequential actions issue. Assuming that we're comfortable with that, it would flow that we're very comfortable trialling the rates, s they are. If we end up with sort of a roadblock where, by way of example, let's say there's a particular definition and 90 per cent of our workforce is in grade B, rather than more in grade A, that might be a different debate. But, at this stage, I think, if we can solve the sequential actions issue, or our client's part, and our members, we're very comfortable with the very considered arrival at the rates.
THE VICE PRESIDENT: All right. Does any other party wish to say anything about this?
MR CLARKE: I think it's linked to this question of the task, the idea of focusing on tasks. But, I mean, we've identified other examples of repetitive or process work throughout the award system that are paid at the minimum wage rate or higher.
THE VICE PRESIDENT: So where do we go with that submissions, Mr Clarke?
MR CLARKE: Well, as I say, perhaps it is something that can be resolved by the definitional aspect, perhaps it can't.
THE VICE PRESIDENT: All right. So I think in respect of - I think we've basically done number 5. Number 6, the modified SWS methodology, does anybody wish to say anything about that?
MR WARD: Ms Langford might address that, your Honour.
THE VICE PRESIDENT: Yes, Ms Langford?
MS LANGFORD: There were some issues that had been identified through the trials of the modified SWS and we'd like an opportunity to actually have a look at whether we could remedy some of those things through this process, and we'd really like the opportunity to work with DSS around that.
THE VICE PRESIDENT: These are other issues, are they?
MS LANGFORD: No. Well, they were issues that were identified when the trial actually occurred. So we just want to make sure (a) if we could actually have a little bit of a review - because 12 months now, the modified SWS has been in place, and there hasn't been any feedback from people who are actually using it to see whether it's actually occurring okay and - - -
THE VICE PRESIDENT: I think we might be at cross-purposes. I'm talking about the further modification which I propose in the decision.
MS LANGFORD: Yes. Yes, that's fine.
MR WARD: Yes, Hansard called it the FWC SWS.
THE VICE PRESIDENT: Yes. Does the Department want to say anything about the methodology?
MR SOTIROPOULOS: Not at this point, your Honour.
THE VICE PRESIDENT: All right. Number 7, so this is obviously an issue for the Department. This is not - partly to do with the trial but more broadly to do with the longer term. That is, if this happens then obviously there'll need to be a greater number of SWS inspectors available. What's the Department's position about that?
MR SOTIROPOULOS: Again, at present, your Honour, we would need to wait for - we are actually waiting for the outcomes of the trial to really understand the implications. At the moment we do fund assessors to undertake modified SWS assessments. There's a small proportion of ADEs that actually use the modified SWS tools, so the costs are constrained within the parameter. Obviously, if it's broader coverage more people are covered, we would need to consider that.
The other context we are considering is that at the moment the modified SWS is one of a number of tools and ADEs do currently use other tools and conduct their own assessments. So we'd need to understand the implications of that, in the context of the trial going forward.
THE VICE PRESIDENT: I understand why you'd need the result of the trial. But the simple fact is, the whole decision is based on the fact everybody in the sector would be using the SWS. That, inevitably, means that there will need to be more assessors than there are now.
That seems to me to be a fairly straightforward proposition. If the Department's not prepared to fund that, then we need to know sooner or later, because there's no point going ahead with the trial if, at the end if the day, it can't be implemented because the government won't fund it.
MR SOTIROPOULOS: We can't commit, one way or the other, at the moment. At the moment what we've got is a government announced decision, $67 million is being put towards the transition to the new wage structure. We would need to assess the implications of funding more assessors and undertaking more assessments.
So, currently, with the modified SWS, there's an assessment undertaken when the employee commences with work. There's an assessment conducted one year later and then every three years from then on. We would need to look at that whole context to understand the full cost implications. Because, as I understand from other submissions, there are other cost considerations for the Commonwealth that are being put forward by ADEs, in terms of superannuation, or in terms of wage subsidies, more broadly. All those things need to be taken within context and we couldn't commit to a number, without government consideration of that.
THE VICE PRESIDENT: All right. So in terms of funding of SWS assessors, when will the Department be in a position to give some advice about that? I repeat, unless some party wishes to contradict me, it seems to me to be a waste of time proceeding upon a trial which if premised upon a modified version of the SWS being adopted on an industry-wide basis if, at the end of the day, that can't be achieved because there's no money to do it.
MR SOTIROPOULOS: Yes, understand. It may be - previously I submitted that in February we'd be able to get a decision on the submission, in early February, from government. We could put this to government then as well. So I think you were posing earlier, potentially, a further conference in the first week of February?
THE VICE PRESIDENT: Yes.
MR SOTIROPOULOS: If I could respectfully ask that maybe we reconsider that, push it a bit further back, which would allow us to at least approach government for consideration of what you're putting forward, and we could come to that conference with that information.
THE VICE PRESIDENT: All right. Well, I'm not assessing the conference in the first week of February will be the last conference we have but, certainly, any advice that - further advice that we can get by that point would be useful.
MR SOTIROPOULOS: Okay.
THE VICE PRESIDENT: All right. So then we turn to the trial. So unless anybody wishes to say anything, I think we've addressed (a). (b), we've just discussed government funding but, obviously, the Department would understand that this is a more urgent issue because - and we're talking about 1 May, but I understood that money was appropriated in the budget to allow this to happen.
MR SOTIROPOULOS: There was.
THE VICE PRESIDENT: That would include funding for some person, presumably a consultancy or perhaps a government entity, to collate the data and publish a report?
MR SOTIROPOULOS: Absolutely.
THE VICE PRESIDENT: All right. Would the Department be in a position to identify a person or entity it would be prepared to fund to undertake that task?
MR SOTIROPOULOS: Not at the moment. We would have to go through our procurement process but, yes, we could identify it, once that's done.
THE VICE PRESIDENT: All right. Now, in terms of oversight of the trial, what I would have in mind is a small subcommittee, chaired by a member of the Commission, which would involve employer, Department and, if they want to participate, union involvement. Do the parties wish to advance any proposals about that?
MR WARD: We anticipated there'd be a working group, your Honour, which is how we described it. I think we should try and keep the numbers to a sensible number. From our part, we probably only want three, tops four, people representing the employer side. That would seem to be a very sensible way to proceed.
THE VICE PRESIDENT: Right. The union representatives, are they interested in participating in the other side of the trial?
MS WILSON: I think we would be, yes.
THE VICE PRESIDENT: All right. Perhaps, can I ask the ACTU and the union participants to identify who they would wish to be involved in the trial? I think we have in mind a fairly small group, perhaps about five people in total, so I ask you to bear that in mind.
Now, in relation to (d), Mr Ward, you've already made a submission about what you see, as it were, the sample size. Does anyone else wish to make a contribution about that? Obviously that's fairly large, so it makes it a bigger task. Do parties agree that that should be the size, or does it need to be that size?
MR BROWN: Your Honour, we'd like to do just a little bit of analysis of the population of employees within ADEs to give us some advice on what a statistically robust sample would look like and put that in the mix for consideration.
THE VICE PRESIDENT: Yes, all right.
MR WARD: Your Honour, what we might suggest is that NDS have an open line of dialogue with the Department on this issue. It might be that we allow, at this stage, NDS and the Department to confer further. I suspect what will happen then is that there will be a proposed list of ADEs, their geography, their demographics - - -
THE VICE PRESIDENT: And the type of work they undertake.
MR WARD: - - - the type of work they undertake, which could then be tabled to the Commission and the parties.
THE VICE PRESIDENT: All right.
MS WALSH: We would like to ensure that whatever size is chosen that they are representative of Australian ADEs and of different types of activities. There's none that you could pick that represents them all, but I think we need a fair representation of those.
THE VICE PRESIDENT: All right. Okay, so we'll receive a report back about that in February.
Perhaps the next one is directed at you, Ms Walsh, primarily. In terms of employee participants in the trial, what role, if any, should their parents and guardians play?
MS WALSH: Well, having been through the modification trials, we're conscious that having parents, carers and outside people involved in the trials does not, perhaps, deliver the best outcome, because it's a disturbance in the natural, daily flow of work, which can raise concerns with the workers.
So our position would be that we do confer fairly regularly with families, and our position would be that if we were part of the working party we could receive the relevant reports. We do not want to disturb the flow or outcome of the trials.
THE VICE PRESIDENT: Right. It seems to me that one thing that would be involved would be that employees who have never been the subject of an SWS assessment before would have to undergo one. I mean does that raise any issues that you can see?
MS WALSH: Certainly. We're fairly comfortable with the approach currently taken to the trials, as it has been relayed to us but, again, they have to be representative. We're also very comfortable with the introduction of the rights at work clause, because we believe that covers a lot of the issues which were previously problems.
THE VICE PRESIDENT: All right. Well, it is clear that that clause will be an operative part of the award, at the time the trial occurs.
MS WALSH: Yes. We noted that and I'm very pleased to see that. If we could have a representative on the working party, to give feedback and provide input, as we receive it from those places undergoing trials, then that would be really all that we think that would cover the issues on behalf of the employees and for parents and guardians.
THE VICE PRESIDENT: All right. In terms of (f), we might defer that until we see what the parties come up with. But it may be that if they're at this stage considerable problems, in terms of definition, it might be possible to trial different definitions and different places and see what happens.
MR WARD: Yes.
THE VICE PRESIDENT: In respect of (g), this is simply to identify what matters need to be reported upon at the end of the trial. So, obviously, there's issues of aggregate wage cost to employer and the effect on the wage rates of employees. There's also some other matters. First of all, the capacity of SWS assessors to undertake this process in the timeframes and whether that can work efficiently at workplaces that haven't had SWS before. Again, also, there may be issues of subjective employee reactions of being subject to SWS assessments and changing wage rates and the like.
Are there any other issues which the parties think the trial should report on?
MR WARD: If we can go to the other end, your Honour, we do believe, for it to be transparent, people participating in the trial, if you're thinking about grades A and B, they'll need to explain who they've classified employees, based on the work they're actually performing and how they made decisions that they're grade A or they're grade B people. In doing that, they'll need to explain the nature of the work and how they saw that work fitting in.
Secondly, a bit like you've already said, they'll need to give some subjective observations as to the ease of that or the difficulties they confronted. So I think that has to be part of the reporting on the outcomes of the trial, sitting next to the SWS and the economic piece.
There may be a separate economic piece, which actually isn't part of the trial, but might be part of further submissions and that is I think the trial will probably deal with what I call the micro economic piece, that is, "John was paid X before and he's paid Y today". I don't necessarily think the trial will be able to go as far as to say, "Can we now look at the aggregate cost issues associated with that broad enterprise as a whole?". That might need to be the subject of submissions and other material, in addition to the trial material. There might be a slight distinction there.
THE VICE PRESIDENT: Right. Anything else?
MR WARD: The only other thing I would say is that I think it would be - obviously it would be helpful, and I suspect the DSS will take care of this, obviously we would prefer to have template reporting documentation available to all the employers in the trial. So to the extent that they are filling materials out, about the matters that I've just discussed, they're at least filling them out using the same templates. I think that would help a lot.
Sometimes, in the past, when we've had these trials, some poor person has acquired a whole series of random notes, which has been highly inefficient. So I think that might be part of the discussion that NDS and the DSS have about the trial generally as well is, what's the format of the template for recording.
MR SOTIROPOULOS: We think that's important for the consistency and rigour of the information being collected.
MS LANGFORD: Yes, we (indistinct).
THE VICE PRESIDENT: Okay. In terms of - I'm just going back to the sample size and the issues of aggregate cost. I mean is it suggest that, for example, in any given case, the whole of the workforce of a particular ADE might be sampled?
MR WARD: No, that wasn't the intention, your Honour.
THE VICE PRESIDENT: Because it seems to me that one of the things we are looking for is for the trial to give us an understanding of what, if anything, this is actually going to cost ADEs. If this leads to a blow out in cost, or perhaps something on the other end, we want the trial to show us that.
MR WARD: Your Honour, there's two things about that that could be said. One is, obviously, if you wanted a complete picture one would have to do whole ADEs or at least whole ADE establishments. Absent that, if one is doing 20 per cent of the workforce, you're going to have to do some averaging or some sort of aggregation to try and give the Commission the answer your looking for.
THE VICE PRESIDENT: That's right. So if the 20 per cent of the workforce is a representative 20 per cent - - -
MR WARD: Sample, yes.
THE VICE PRESIDENT: - - - then we can say five times that cost is going to be the end result.
MR WARD: Yes. That's what we were aiming for, at this stage, rather than trying to sort of cherry pick the good or the bad or - that was the thing we were aiming for, so that at the end, if we have taken a representative sample of 20 per cent, we can say, with some confidence, if you extrapolate that out this is the aggregate effect.
SPEAKER: Can I just clarify on that point? Representative 20 per cent, I hope you don't mean 4000 of the 20,000?
THE VICE PRESIDENT: No. We're at 500, it's all right.
MR WARD: In an individual enterprise, if you're going to pick, say, seven people, you need to probably make sure that if you have seven key areas, you've got one from each work area. That's what we're thinking about.
THE VICE PRESIDENT: All right. Does any other party wish to identify any outcome they would want to see identified in the report, from the trial? No? All right.
Are there any other issues that anybody wishes to raise about the trial? All right.
So, finally, the coverage issue. I think, Ms Langford, what do you want to say about the coverage issue?
MR WARD: I think you're going first, Kerry.
MS LANGFORD: I'm going first, am I? So we just had some concern that the actual coverage was going - might be too broad and actually bring in people that it was unintended for. So what we'd like is some time to actually examine exactly who would be covered if the definition was actually changed.
THE VICE PRESIDENT: We're not talking about changing it. Currently the coverage operates by reference to a definition of Supported Employment Services and section 7 of the Disability (Services) Act. It doesn't seem to me, subject to what anyone else says, that definition, which is the sole bit that's picked up from that Act, is affected by the NDIS or funding changes. But what our provisional view is that we should simply pick up that existing definition and put it into the award itself so it's not subject to any changes in the Act.
MR WARD: Could we make this submission, from our perspective? I think this an anxiety to make sure that, with everything that's changing, that what your Honour's trying to intend to do actually occurs. It might be that we need a little bit more time just to be comfortable with that and it might be that when we report back, in February, we can confirm, with some clarity, exactly where we are on that and it might be that any initial anxieties we've had have been allayed and there'll be some opportunity to talk with the Department.
THE VICE PRESIDENT: So to be clear, the actual current statutory definition is contained at paragraph 9 of the decision. It simply talks about:
Services to support the paid employment of persons with disabilities being persons for whom competitive employment, at or above the relevant wage rate, is unlikely and who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.
MR SOTIROPOULOS: Your Honour, respectfully, what I would put forward in that is as well the Disability (Services) Act also contains definitions around target group, eligible organisation because, as I submitted earlier, with the NDIA and the way it supports people in employment, there are instances where you could have somebody who - for whom, because of their disabilities, need substantial ongoing support, that could occur in an open environment, in the future, as opposed to just the ADEs. So we just need to consider it contextually.
As I said, there are other elements of the Disability (Service) Act that we think we just need to consider. We haven't landed on a position, but 'eligible organisation' has a defined meaning, so does 'target group', so there are a couple of things we just need to consider.
THE VICE PRESIDENT: Yes. Just to be clear, what we're proposing is simply to detach the operation in the award from the Disability (Services) Act, that's the first thing. The starting point is that definition, set out in paragraph 9 and if anybody thinks that definition, which is the current definition, does not properly describe the sector, then there should be operators drafting the changes necessary to that definition to make it accurately describe the sector we're talking about.
MR WARD: Your Honour, in my opinion, the definition is fine. There might need to be some exclusion to make sure that there's no creep into the private sector, as such.
THE VICE PRESIDENT: All right.
MR SOTIROPOULOS: And, respectfully, from a - I'll say policy perspective, rather than legal, we can look at it the other way too and say, "We think the definition is very appropriate and maybe it should be broader, but that has cost implications". So we can see it both ways. That's why - we're very open and we do think the definition is very helpful.
MR CHRISTODOULOU: Your Honour, can I just make a comment there, so I'm very clear about this? If somebody has a disability and is being supported in an open employment environment, but it's the employer in the open employment environment who is the employer, that is not Greenacres, who supports the person, we're just the support organisation, but that person that we're supporting is employed by Coles, or Woollies, or whatever, this award does not apply and should not apply - - -
THE VICE PRESIDENT: The current position is that it has to be the employer of the person who operates the Supported Employment Service.
MR CHRISTODOULOU: That's right, thank you.
THE VICE PRESIDENT: Okay. So the parties can have a discussion about that and report back in February, if there's some consensus about any change that needs to be made. It's not immediately clear to me that a change is necessary.
MR WARD: It might not be.
MS LANGFORD: Yes, thank you.
THE VICE PRESIDENT: All right. Does any party wish to raise any other issue today? No? All right. So do the parties wish to take the opportunity of this facility and their presence today to have a further discussion, among themselves, about grades A and B?
MR WARD: I think some of us will, certainly, your Honour. We'll probably use the conference room outside the court room.
THE VICE PRESIDENT: Do any of the participants in Melbourne wish to involve themselves in that process, today?
MS WILSON: Not today, at this point, thank you.
THE VICE PRESIDENT: All right. Ms Liebhaber, Mr Clarke?
MR CLARKE: I'm not in a position to do that today, your Honour, but while I've got a microphone in front of me, can I request, perhaps, that the conference in the first week of February occur not before Wednesday the 6th?
THE VICE PRESIDENT: All right. Recovering from the tennis, are you, Trevor?
MR CLARKE: No.
THE VICE PRESIDENT: All right. So no one wishes to maintain the video link for today?
MS LEIHABER: No, your Honour.
THE VICE PRESIDENT: All right. So we can attempt to find a conference room of the appropriate size, if that's of any utility?
MR WARD: Yes, your Honour, thank you.
THE VICE PRESIDENT: Yes, all right. Well, as I've indicated we will, probably in mid-January, issue a statement about today's events and charting the future course.
We will send out a listing for a for a further conference that will be not before 6 February.
Apart from that, I'll now adjourn and can I wish everyone a Merry Christmas and thank you for your participation in the proceedings today.
ADJOURNED INDEFINITELY [10.28 AM]