STATEMENT

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)

4 yearly review of modern awards – Supported Employment Services Award 2010 – conference outcomes – modified timetable

Introduction

[1] On 3 December 2019 we published a decision in this matter 1 (December decision) in which, among other things, we set out:

•  the variations to the Supported Employment Services Award 2010 (SES Award) which we were currently minded to make, subject to the conduct of a trial concerning the new wages structure and the receipt of further evidence and submissions following the completion of that trial;

•  a proposed timetable for conduct of the trial and the implementation of the variations; and

•  our expectations concerning Commonwealth Government financial support for the trial and implementation process.

[2] After the receipt of further submissions in response to the provisional views and draft determination in that decision, a conference was conducted with interested parties by Vice President Hatcher on 20 December 2019. The purpose of this statement is to set out the future course we intend to take concerning the implementation of the December decision, including the identification of some modifications to the provisional approach taken in the December decision, having regard to the issues raised by the parties which participated in that conference.

Timetable

[3] Having regard to concerns expressed by a number of parties about the need for more time to prepare for the trial of the new wages structure, the proposed timetable set out in paragraph [380] of the December decision is modified as follows:

31 March 2020 - Commission determines the final wages structure for the purpose of the trial.

1 May - 31 July 2020 - conduct of the trial of the new wages structure.

28 August 2020 - public release of information concerning the outcome of the trial.

25 September 2020 - receipt of any further evidence and submissions concerning the outcome of the trial and any consequential further modifications that might be required to the new wages structure.

26-30 October or 2-6 November 2020 - further hearing if necessary.

27 November 2020 - final determination varying the SES Award to delete the existing wage assessment tools and add the new wages structure issued.

1 January 2022 – operative date of final determination, upon which existing wage assessment tools cease to operate and the new wages structure comes into operation.

[4] This timetable may be the subject of further modification as events progress.

Wages structure

[5] Two problems of substance were identified with respect to the drafting of the new wages structure set out in Attachment A to the December decision. Firstly, the ACTU submitted that the proposed new Grades 4-5 contain training qualification requirements which are not contained in a number of the incorporated award classifications, and Grade 7 contains a qualification requirement which had not previously existed and which might result in a reduction in wages for higher skilled employees. In respect of this issue, the ACTU agreed to draft modifications to the classification descriptors for these grades which would from its perspective resolve the identified issue by 31 January 2020. This may then be the subject of further consideration.

[6] Secondly, ABI, Greenacres and other employers raised concerns about the drafting of the classifications descriptors for the proposed new Grades A and B. These concerns centred on the meaning to be assigned to the 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. It was agreed that ABI, Greenacres and other ADEs should in the first instance endeavour to achieve a consensus amongst themselves as to what modifications may be made to the classification descriptors for Grades A and B to resolve their concerns, and their proposal in that respect may then be the subject of further consideration by interested parties and by the Commission.

The trial

[7] There was a broad consensus amongst ADEs and the Commonwealth Government that the trial should involve a range of ADEs, performing different types of work and located in metropolitan and regional areas, and approximately 500 employees. It is agreed that further discussions will occur, particularly between NDS and the Commonwealth Government in the first instance, concerning the conduct of the trial. There will also be further consideration about the constitution of a working group to oversee the conduct of the trial, which should include representation from the Commonwealth Government, ADEs, unions and parents/guardians.

Commonwealth funding

[8] The effective implementation of the December decision will require Commonwealth financial support in at least the two following areas:

(1) the conduct of the envisaged trial (including preparation of a report concerning the trial’s outcomes); and

(2) the engagement of greater numbers of SWS inspectors when the entire supported employment sector ultimately moves to the use of the new SWS methodology.

[9] The Commonwealth Government was not in a position at the conference to make any commitments in respect of funding beyond noting that it had previously announced (well before the December decision) that funding of $67 million would be put towards the transition to the new wages structure. The Commonwealth Government indicated that it may be able to provide further advice as to its position in February 2020.

SES Award coverage

[10] It is noted that interested parties intend to give further consideration to and have further discussions about the provisional view concerning the expression of the coverage of the SES Award in paragraph [386] of the December decision.

Superannuation

[11] There was a consensus among the parties participating in the conference that the proposed variation to clause 19.5 of the SES Award to increase superannuation contributions for the lowest-paid disabled employees should be modified to read as follows:

19.5 Employees with disabilities

Superannuation contributions for employees with a disability will be either 9.5% of their ordinary time earnings or $15 per week, whichever is the greater.

[12] We will provisionally adopt the consensus position, which involves the abolition of the current $450 per month income threshold. It resolves a problem identified in the variation proposed in the December decision (which was based on the claim advanced by the UWU) that superannuation contribution would decrease in their dollar value upon an employee passing the income threshold (because 9.5% of an income of $450 per month is, on a weekly basis, only approximately $10.70). In due course, a draft determination for the variation to clause 19.5 will be published, and interested parties will be given an opportunity to make further submissions about it.

[13] In respect of the operative date of 1 October 2020 for the variation to clause 19.5 provisionally determined in paragraph [383], the position of employer parties may be affected by the response of the Commonwealth Government to a request made by National Disability Services for financial support to fund the first year of the increase to superannuation contributions. Accordingly, further consideration of this issue will be deferred until the Commonwealth Government is in a position to give its response to this request.

Rights at Work for Supported Employees clause

[14] No party raised any issue or expressed any concern about the terms of the “Rights at Work for Supported Employees clause” set out in Attachment A to the December decision or the proposed operative date of 1 March 2020. Accordingly, a determination will be published to give effect to the variation.

Further conference

[15] A further report back/conference will be listed for 10 February 2020 at 9.30am in Sydney, with video-links as required.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 8179