[2020] FWCFB 1704
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Supported Employment Services Award 2010
(AM2014/286)

Social, community, home care and disability services

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BOOTH
COMMISSIONER CAMBRIDGE

SYDNEY, 30 MARCH 2020

4 yearly review of modern awards – Supported Employment Services Award 2010.

[1] In the statement which we issued on 21 January 2020 1 (statement) we identified two issues which had been raised by interested parties concerning the new wages structure for the Supported Employment Services Award 2010 (SES Award) provisionally adopted in our decision of 3 December 20192 (principal decision). The first, raised by the ACTU, was that the proposed new Grades 4-5 contain training qualification requirements which are not contained in a number of the incorporated award classifications, and that Grade 7 contains a qualification requirement which had not previously existed and which might result in a reduction in wages for higher skilled employees. The second, raised by ABI, Greenacres and other Australian Disability Enterprises (ADEs), concerns the drafting of the classifications descriptors for the proposed new Grades A and B - in particular, the meaning to be assigned to the proposed expression “sequential actions”, the requirement for “constant monitoring” in Grade A, and ambiguity as to how to count the number of “sequential actions” in a particular job.

[2] It is necessary to provisionally resolve these issues for the purpose of the trial of the proposed new classification structure which is currently scheduled to commence on 1 May 2020 in accordance with the modified timetable set out in the statement (although we acknowledge that it may turn out that this timetable cannot be adhered to because of the circumstances of the current coronavirus pandemic). We make it clear that in doing so, we are not stating any final view about the new wages structure which will ultimately be placed into the SES Award, nor are we varying the SES Award at this time.

[3] In a submission filed on 17 March 2020, the AED Legal Centre filed a lengthy submission expressing its opposition (on both jurisdictional and merit grounds) to the SES Award being varied to include any wages structure the same as or similar to that proposed in the principal decision. The premise of that submission is that the SES Award is to be varied to give effect to the new classification structure prior to the commencement of the trial. In that respect, at least, the submission is entirely misconceived. The purpose of the trial is to assist the Commission in determining whether the SES Award should be varied to include the wages structure we indicated we preferred in the principal decision. Participation in the trial is voluntary, and it is not necessary that the SES Award be varied in order to conduct it. As the timetable set out in paragraph [380] of the principal decision, as modified in paragraph [3] of the statement, was intended to make clear, we do not anticipate making any final variation to the wages structure in the SES Award until after the results of the trial are known and interested parties have been afforded a further opportunity to adduce further evidence and make further submissions. The current plan is that the final determination will not be made until 27 November 2020 and will not take effect until 1 January 2022. Accordingly, the matters raised in the AED Legal Centre’s submission do not require consideration at this time.

[4] In respect of the issues requiring provisional determination for the purpose of the conduct of the trial, the parties have engaged in further discussions and have advanced further submissions and proposals, but no consent position has been reached. Accordingly, this decision will set out our conclusions as to the contested issues for the purpose of the trial only. Attached to this decision is a modified version of the proposed classification structure which, we consider, adequately addresses the issues raised by the parties. That will constitute the basis upon which the trial will proceed.

[5] We note that ABI proposed that additional classifications from the General Retail Industry Award 2010, the Restaurant Industry Award 2010, the Hospitality Industry (General) Award 2010, the Fast Food Industry Award 2010 and the Clerks - Private Sector Award 2010 be incorporated into the new wages structure. We are not presently persuaded that we should do this for the purpose of the trial. With at least some of these awards, ABI’s proposal does not properly align the incorporated classifications with the pay grades in the SES Award, and the work of these classifications does not appear to us to be a significant feature of the work of ADEs (except perhaps for clerical classifications). This issue may be revisited at a later stage of the proceedings after the trial has been completed.

al of the Fair Work Commission with Member's signature.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717930>

Schedule B—Classifications

B.1 Explanation of Classification Structure

B.1.1 Grades A and B of the classification structure in this Schedule apply to any employee with a disability:

(a) who meets the impairment criteria for receipt of a disability support pension; and

(b) for whom an employer has created a position consisting of duties and a level of supervision tailored or adjusted for the circumstances of the employee’s disability that does not fall into Grades 1-7 above.

B.1.2 Grades 1-7 apply to employees with or without a disability who undertake the duties and exercise the level of skill and responsibility specified in the classification descriptors.

B.2 Grade A

Employees at this grade will perform a simple task or tasks consisting of up to three sequential steps or sub-tasks, any of which may involve the use of jigs or equipment or tools with basic functionality, under direct supervision and constant monitoring.

B.3 Grade B

Employees at this grade will perform a simple tasks or tasks consisting of more than three sequential steps or sub-tasks, each of which may involve the use of mechanical or electric equipment or tools, under direct supervision with regular monitoring.

B.4 Grade 1

Employees at this grade will undertake on the job induction and/or training to perform work in Grade 2 or above for a period not exceeding 3 months.

B.5 Grade 2

Employees at this grade will perform a basic task or tasks in accordance with defined procedures under direct supervision. Such employees will understand and undertake basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults. This may include the performance of work included in the following awards classifications:

B.6 Grade 3

Employees at this grade will perform work above and beyond the skill of an employee at Grade 2 and to their level of training. Such employees will perform a more complex task or tasks than at Grade 2 in accordance with defined procedures under routine supervision. This may include the performance of work included in the following awards classifications:

B.7 Grade 4

Employees at this grade will perform work:

(a) above and beyond the skill of an employee at Grade 3 and below and to their level of training. Such employees will hold a qualification at or equivalent to AQF II or above or an equivalent level of training and experience. Employees at this grade will:

(b) encompassed in any of the following award classifications:

B.8 Grade 5

Employees at this grade will perform work:

(a) above and beyond the skill of an employee at Grade 4 and below and to their level of training. Such employees will hold a trade certificate or an equivalent qualification or an equivalent level of training and experience. Employees at this grade will perform work primarily involving the skills of their trade and may also perform work that is incidental to that work; or

(b) encompassed in any of the following award classifications:

B.9 Grade 6

Employees at this grade will perform work above and beyond the skill of an employee at Grade 5 and below and to their level of training. Such employees will hold a qualification at or equivalent to AQF IV or above or an equivalent level of training and experience. Such employees will perform the work described below:

B.10 Grade 7

Employees at this grade will hold a qualification at AQF IV to or above, of which one third of the competencies are related to the supervision or training of employees, or an equivalent qualification or an equivalent level of training and experience. Employees at this grade will perform work above and beyond the skill of an employee at Grade 6 and below and to their level of training. Such employees will perform the work described below:

 1   [2020] FWCFB 343

 2   [2019] FWCFB 8179