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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1057485

 

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
COMMISSIONER CAMBRIDGE

 

AM2014/286

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/286)

Supported Employment Services Award 2010

 

Sydney

 

9.04 AM, WEDNESDAY, 23 OCTOBER 2019


PN1          

VICE PRESIDENT HATCHER:  I'll take the appearances in Sydney.  Ms Metz, yes, you appear for the Department of Social Security.

PN2          

MS METZ:  Yes.

PN3          

VICE PRESIDENT HATCHER:  Ms Walsh, you appear for Our Voice Australia?

PN4          

MS WALSH:  That's correct.

PN5          

VICE PRESIDENT HATCHER:  Ms Langford, you appear for National Disability Services.  Mr Christodoulou for Greenacres and Mr Ward and Ms Slater for ABI and the New South Wales Business Chamber.

PN6          

MR N WARD:  Yes, your Honour.

PN7          

VICE PRESIDENT HATCHER:  In Melbourne, we have Ms Wilson for the AED Legal Centre.  Is that right?

PN8          

MS K WILSON:  Yes, that's correct.

PN9          

DEPUTY PRESIDENT BOOTH:  There's no volume; there's no sound there.

PN10        

VICE PRESIDENT HATCHER:  Can I ask you to talk into the microphone in Melbourne please; we can't hear you.

PN11        

MS WILSON:  Can you hear me now?

PN12        

VICE PRESIDENT HATCHER:  Yes, thank you.  Ms Liebhaber for the HSU?

PN13        

MS R LIEBHABER:  Yes, your Honour.

PN14        

VICE PRESIDENT HATCHER:  All right, is that all the appearances in Melbourne?

PN15        

MS LIEBHABER:  Yes, with me is Ms Davies AED as well.

PN16        

VICE PRESIDENT HATCHER:  Thank you.  In Brisbane, Ms Boulton, you appear for Endeavour, is that right?

PN17        

MS BOULTON:  Yes, your Honour.

PN18        

VICE PRESIDENT HATCHER:  Thank you.  Starting with you Ms Metz.  We've received the Department's submission.  Does the Department propose any procedural course to be taken in the light of that submission?  That is, how do you want the proceedings to go forward in the light of that submission having been made?

PN19        

MS BOULTON:  Your Honour, I think what we'd like to do from here, is engage with the sector on the pricing which was released on 10 October.  We haven't engaged with the sector yet on how that pricing will be implemented and the DSS proposes to engage, along with the NDIA with the sector to discuss how that pricing is going to be implemented and what the impact will be on AE's.  We think that that's an important piece of information for the Fair Work Commission in its decision making.

PN20        

The other thing that we need to do is engage with the sector on the budget announcement of $67 million and we need to discuss with the sector how that will be used following any decision of the Commission.

PN21        

VICE PRESIDENT HATCHER:  You want to do this before the Commission issues any decision?

PN22        

MS BOULTON:  Yes, your Honour.

PN23        

VICE PRESIDENT HATCHER:  How long do you propose that this will take?

PN24        

MS BOULTON:  Well, we'd like a decision to be made as soon as possible and we're certainly not seeking to delay proceedings at all.  The NDIA pricing will be implemented from 1 January next year, so the consultation process that the NDIA has proposed is a 12 week consultation, as I understand it from the announcement of the price.

PN25        

VICE PRESIDENT HATCHER:  That would deal with the introduction of the pricing mechanism.  That would take 12 weeks to discuss that, but then there would be the consequential effect presumably, of the effect of that upon any wages system for supported employees.

PN26        

MS BOULTON:  I think the engagement on the pricing will take 12 weeks.  The engagement on the budget announcement will be post any decision of the Fair Work Commission, so that consultation would extend into next year.  So, I wouldn't propose that that be decided before the Fair Work Commission makes a decision.  We think it would be a good idea for the impacts of the pricing to be understood by the Commission before a decision is made and we really need to engage with the sector to understand how the pricing will impact them before we can report to the Commission on what the impacts would be.

PN27        

Obviously, the sector knows best and each of the ADE's know best how the pricing will impact them on a business basis.  So, we think it would be a good idea for those individual ADE's to report back to the Commission as well on the impacts of pricing.

PN28        

VICE PRESIDENT HATCHER:  The procedural course would be there'd be some report back as to the effects of the pricing mechanism at some stage after this consultation process you've envisaged, would occur.  So, report back at some stage after another 12 weeks from today.

PN29        

MS BOULTON:  Yes, that's correct.

PN30        

VICE PRESIDENT HATCHER:  Which takes us into the new year.  Anything further?

PN31        

MS BOULTON:  No, nothing further.

PN32        

VICE PRESIDENT HATCHER:  Mr Ward, do you want to go next?

PN33        

MR WARD:  I do, your Honour, yes.  My clients vigorously oppose any further delay in the proceedings and in support of that, we rely on our written submissions as follows.  I also want to make a number of observations having had the benefit of the submission filed by the Department.  I'll deal with that in this fashion.  I just want to refresh the Commission's memory as to the nature of these proceedings and our position, but I don't seek to reagitate the matter.

PN34        

I then want to discuss three or four elements that arise from this submission, and in particular, the relevance or irrelevance of the transition to NDIS on these proceedings.  Then I'll deal with one last matter which is the question of award coverage which is raised by the Department.

PN35        

VICE PRESIDENT HATCHER:  Just to be clear Mr Ward, because we don't have unlimited time.  We're primarily interested as to whatever you want to say about the procedural course.  Obviously, all parties will be given - and this is what we want to discuss, a substantive opportunity to reply to the submissions, but we're not intending for you to give the full substantive reply.

PN36        

MR WARD:  My apologies, your Honour.  I thought the Bench wanted to hear that this morning.

PN37        

VICE PRESIDENT HATCHER:  No, I mean if you can give an outline as to what the reply would be, then that would be useful.  But we're just trying to work out what the next step we should take is, really.

PN38        

MR WARD:  Our position is very simply; the Commission should proceed to hand down its decision.  These are four yearly review proceedings.  The Commission is required to ensure that the award meets the modern award's objective.  My client posited an entirely uncontroversial proposition, that is that the Award should contain a classification structure which would properly determine wages.  Employees are entitled to that, and you should proceed.

PN39        

In relation to NDIS funding, that was alive in the proceedings.  Some evidence was adduced on it.  The sector is continuing now to evolve into the NDIS funding model.  That funding model is not about wage subsidisation or wage subsidy; it's about funding generally for ADE's.  It doesn't bear any significant relevance whatsoever to your decision.  I don't know why it's being brought up at this late hour as a reason for you to delay.

PN40        

The controversy that is alive in this industry for the last four years is alive today and it needs to be resolved.  And if we need to develop those submissions further, we will, but that's the gist of where we stand.

PN41        

VICE PRESIDENT HATCHER:  Just to refresh that slightly, as I understand one of the things the Government or the Department is putting, is that the new funding model, even though it may not involve wage subsidies directly, will end in a more general sense inject more revenue into ADE's which would theoretically allow them to pay higher wages to support employees than would otherwise be the case.  That's important given that there's been submissions and evidence about the affordability of introducing the SWS as a single wage mechanism.  I'm just trying to reframe the Department's proposition.

PN42        

MR WARD:  There's two things about that, your Honour, and if they're not getting into this debate, they will.  The NDIS funding model does not inject more money into the industry, it takes a very large amount of money out of the industry.  But our case was advanced on the basis of proper principles and work value.  While the Bench were concerned about ensuring affordability, it's more importantly sustainability of the industry.  That case wasn't advanced on that principle and that principle alone.

PN43        

We've been waiting for years for this to be resolved.  My client's position is not going to change and I note that we're the only industrial party in the proceedings at the moment.  My client's position is not going to change this week, next week or in 12 weeks' time.  The decision should be handed down.

PN44        

VICE PRESIDENT HATCHER:  From the procedural perspective, if we simply gave your organisations a period of time to file the written submission in response, say 14 days would that be - - -

PN45        

MR WARD:  Your Honour, we could do it in seven.

PN46        

VICE PRESIDENT HATCHER:  I thank you.  Mr Christodoulou do you want to go next?

PN47        

MR C CHRISTODOULOU:  Yes, your Honour.  We support the submissions of ABL and also the letter written by NDS.  We simply say this, the new NDIA funding model that's been announced explicitly under legislation, cannot be used in our understanding for supported employee wages.  That's very important to understand.

PN48        

We've done our calculations.  We will be a million dollars worse off in funding.  We'll put this in a submission.  We're not the only ADE in that category.  Any argument that has been put by the Commonwealth that somehow this new funding model to support people with disabilities in terms of training and supervision, is somehow the panacea to change our view that we should implement a supported wages system, is not one that we're going to be happy to go along with.

PN49        

I don't think that we'll be - we're happy to engage about the funding model, because we do need to engage the Commonwealth about it, because at the moment it is catastrophic for our organisation, so we do need to change that funding model.  But it's certainly not a model as it currently stands that would at all change our minds about the direction that we put to this Commission in terms of work value and new classification structures and the like for supported employees working in ADE's.

PN50        

I simply finish on this.  I don't think the Commission should hold out much hope that if we adjourn for 12 weeks, that we're miraculously come to some agreed position with the Commonwealth that we would come here by consent to implement the SWS.  So, certainly support the course of action about putting in submissions about the funding model as it currently stands.

PN51        

VICE PRESIDENT HATCHER:  Thank you.  Ms Langford.

PN52        

MS LANGFORD:  Thank you, your Honour.  I would just like to reiterate that we do support the notion for awards actually put forward in terms of actually pushing for the decision.  One of the things that we want to acknowledge is we do need to de-couple against support from wages.  They are two quite different things and two quite different matters.  What we would urge is that there is a release of decision so that we can look at the proposed funding that DSS has actually put forward in line with any decision that is actually released by the Full Bench.  Then we can actually look hand in hand what the impact is.

PN53        

Part of that, we do need quite urgently from DSS, what the rules and the assumptions are that underpin the proposed funding.  We are concerned by one of the statements in the letter from Mr Ly around the fact that increased funding - because we don't know if it will be increased funding will actually lead to a higher productivity, because that's an untested assumption that will therefore lead to greater productivity for the disability enterprise with that flow-on affect.  We think that needs to be tested; it's an untested assumption.

PN54        

I don't know whether this is the appropriate time to bring this to light as well.  We are also concerned about the reference in the letter from Mr Ly just around the definition of support employment.  I don't know whether you recall, but in September 2017, we actually did raise that issue.  We were given some advice at that point of time, following that initial advice, that it wasn't deemed to be an issue and so we, at that point of time, said we would pull that back.

PN55        

We would like the opportunity in the forthcoming proceedings to actually revisit those definitions because we do believe that they are quite relevant, particularly in light of the reference made in Mr Ly's letter.

PN56        

VICE PRESIDENT HATCHER:  All right.  Well, Ms Lanford, and you, Mr Christodoulou, Mr Ward was happy to file a written submission in response to the DSS submission in seven days.  Is that suitable for you, or do you want to propose some other course?

PN57        

MR CHRISTODOULOU:  I'd prefer 14, but we will try to comply to suit.

PN58        

VICE PRESIDENT HATCHER:  No, that's only suggested.  If you need 14 days.  Ms Langford?

PN59        

MS LANGFORD:  Yes, we'd need 14 days because we need to consult with our membership.

PN60        

VICE PRESIDENT HATCHER:  You could also deal with the coverage definition issue in such a submission as well?

PN61        

MS LANGFORD:  Absolutely, we'll resubmit our submission.

PN62        

VICE PRESIDENT HATCHER:  Thank you.  Ms Walsh?

PN63        

MS WALSH:  Thank you, your Honour.  Justice delayed is justice denied and that's what we're looking at here.  No group of workers has ever fought harder for wage determination than our ADE workers.  This out of left field intervention of the Department is - I mean they've been an observer for years and now, we're delaying everything.

PN64        

We support most adamantly, the need for a decision to be made.  How can we work out - I mean, as family carers and for our workers, we've been living with transition and support for years and we don't want more of that?  We want the providers to be able to have an industrial decision as quickly as possible so we can then go and refine the support that's required to fund that wage as determined by the Commission.

PN65        

This is an industrial issue; the support sits over there.  Funding coming from the NDIS will only be for the participants and will be incorporated into their plans.  The NDIS legislation specifically says that the NDIS will not act as an interloper with the respect to taking over the roles and responsibilities of another system.  In this case, that's the DSS.

PN66        

We need, most adamantly a decision to be made and we are quite happy to provide our substantive case within 14 days your Honour.

PN67        

VICE PRESIDENT HATCHER:  Right, thank you.  Ms Boulton, I might go to you next.

PN68        

MS BOULTON:  Your Honour, we've had the benefit of reading the Australian Business Lawyers submissions filed on 21 October and we support those submissions.  Our position remains that the Commission should hand down its decision regardless of the new funding arrangements referred to in the Department's correspondence and submission.  While we have not had the opportunity to consider the Department's submission in great detail, it appears that the Department is advocating for the adoption of the SWS tool, based on the premise that there'll be more funding available in the system.

PN69        

With respect, that does not address the question of whether the SWS tool is the correct tool to be used by Australian Disability Enterprises.  Indeed, as noted by the Full Bench in its statement of 16 April 2019, the Full Bench rejected both the SWS an the modified SWS as appropriate for setting wages in the ADE environment.  This matter has been progressing before the Commission for some time.  The final hearing was held on 29 November last year.  It is our view that the proceedings have been finalised, but for the final decision to be handed down by the Full Bench.

PN70        

We need the Commission's decision to provide a stable classification and associated wages framework for the industry.  The submission filed by the Department contains no new evidence that would affect the Commission's decision in that regard.  The industry is constantly facing new challenges when it comes to funding.  This is nothing new.  Governments change and so do their policies.  It is therefore important that the decision is issued so we can begin to plan and understand our wage situation going forward.

PN71        

However, if the Commission is of a mind to (indistinct) the submission to be heard as part of these proceedings, then we do wish an opportunity to formally respond and will do so within the 14 days as previously discussed.

PN72        

VICE PRESIDENT HATCHER:  Thank you.  Ms Wilson in Melbourne?

PN73        

MS WILSON:  Your Honour, we provisionally support the submissions by the Department of Social Services.  We obviously need more time to consider what has been proposed.  Certainly, the submissions made by the Department today, again we would support that.  Whilst we obviously have been looking for a decision, we believe that this submission by DSS has put something else on the table that needs to be considered.

PN74        

We would certainly appreciate 14 days to do a substantive reply to both DSS and also to the submissions made by ABL and NDS.  We do oppose those two submissions.  We would support again, provisionally the 12 week period because we believe that this is something that is important and it is important to investigate properly, rather than just brush it aside.  That's of concern that it's not been looked at in a way that this could resolve the issues.

PN75        

That's our position at this stage.  Thank you.

PN76        

VICE PRESIDENT HATCHER:  Thank you.  Ms Liebhaber.

PN77        

MS LIEBHABER:  Your Honour, the HSU also supports the submissions of the DSS and we would support having some more time to consider those in that 12 week period that was suggested.  The views of the DSS on the supported wage system tool and the funding issues were a live issue in the proceedings.  We think it's relevant that these developments are considered.

PN78        

The assertions from ABI and other parties about being financially worse off, are simply assertions that haven't been backed up by evidence.  So, we don't think that they should be given weight, those assertions made today.  Thank you.

PN79        

VICE PRESIDENT HATCHER:  Thank you.  Ms Metz, do you want to say anything in reply to all of that?

PN80        

MS METZ:  Your Honour, just one thing in reply.  I just want to make clear that the Department isn't advocating for a particular wage tool.  The purpose in making this submission was to put the information before the Fair Work Commission that we thought was relevant to your determination.  So, I'd just clarify that we're not advocating for a particular tool, but the Commonwealth does currently fund SWS assessment through the National Panel of Assessors Service.

PN81        

In that way, and indeed the SWS is a Commonwealth program.  I'm not sure if submissions have been made in this regard before, but the SWS has flow-on implications for other Commonwealth legislation, such as the Social Security Act.  So, if another tool is adopted, the Commonwealth will need to take steps to amend that legislation so that DSP eligibility applies to any new wage tool.  Just wanted to note that there are some flow-on effects if a different wage tool is adopted that we would need to take into consideration following on any decision.

PN82        

VICE PRESIDENT HATCHER:  I think that's the first we've heard of that.  We might have been told that usefully before at some stage, but anyway.

PN83        

MS METZ:  I think it's section 94 of the Social Security Act that refers to the supportive range system.

PN84        

VICE PRESIDENT HATCHER:  Ms Metz, in the event that we gave parties generally, 14 days to respond in writing to the Department's submission, would the Department seek any opportunity to reply to those submissions?

PN85        

MS METZ:  Your Honour, we'd have to review the submissions when you're provided.  I think at this point in time, the Commonwealth has provided all of the relevant information.  If there were further information that came to light following consultation with Australian Disability Enterprises about the NDIA pricing, I think we may seek to make further submissions in that regard.

PN86        

VICE PRESIDENT HATCHER:  Well, I'm not sure you should just assume you'll be given another opportunity.  I'm asking you now, do you want us to accommodate that opportunity now, or not?

PN87        

MS METZ:  In that case I will say yes.

PN88        

VICE PRESIDENT HATCHER:  All right.  Thank you.

PN89        

We thank the parties for their submissions.  We will make the following directions that any interested party which wishes to make a submission in response to the submission made by the Department of Social Services dated 22 October 2019, they shall do so in writing within 14 days of today's date.  If the Department wishes to respond to any of those submissions, it will have a further seven days to file a submission in writing.

PN90        

We thank you for your attendance; we'll now adjourn.

ADJOURNED INDEFINITELY                                                          [9.27 AM]