PN566

VICE PRESIDENT HATCHER: Yes, are there any changes in appearances?

PN567

MS LEIBHABER: If it please the Commission, Leibhaber for the Health Services Union.

PN568

VICE PRESIDENT HATCHER: Thank you. Are there any issues we need to deal with before we call the first witness?

PN569

MR HARDING: There's a couple of housekeeping matters pertaining to the evidence, your Honour.

PN570

VICE PRESIDENT HATCHER: Yes.

PN571

MR HARDING: Nice to see you face to face too by the way. Your Honour, there are three witnesses that are proposed - four witnesses that the AED propose to be called, three of those have been required for cross-examination, one has not and I propose to tender her statement.

PN572

VICE PRESIDENT HATCHER: Right. Who is that person?

PN573

MR HARDING: That person is Kairstien Wilson, the statement of Kairstien Wilson filed on or about October of last year, with a number of annexures.

PN574

VICE PRESIDENT HATCHER: Right, just give us a second. Mr Harding, is there a dated version of that statement?

PN575

MR HARDING: 19 October 2017 is the date on the statement. It may have been put on the - might have been filed a day or so after that, your Honour.

PN576

VICE PRESIDENT HATCHER: Yes. Are there any objections to the admission of that statement? No, right. The statement of Kairstien Wilson dated 19 October 2017 will be marked exhibit 1.

EXHIBIT #1 STATEMENT OF KAIRSTIEN WILSON DATED 19/10/2017

PN577

MR HARDING: Your Honour, I propose also to file three reports that were produced during the conciliation conference.

PN578

VICE PRESIDENT HATCHER: Do you want to tender those now do you?

PN579

MR HARDING: Yes, I do.

PN580

VICE PRESIDENT HATCHER: Have the other parties seen those?

PN581

MR HARDING: Well, I assume that the parties have seen those in the sense that they were participating in the conciliation conference. To that extent they've seen them but I haven't shown them to them directly.

PN582

VICE PRESIDENT HATCHER: Well, let's just - can you just identify them slowly one by one - - -

PN583

MR HARDING: Yes.

PN584

VICE PRESIDENT HATCHER: - - - and then we'll see where we go with this.

PN585

MR HARDING: The first document is called The Modified Supported Wage System Demonstration Report 2017. The second - - -

PN586

VICE PRESIDENT HATCHER: Slow down.

PN587

MR HARDING: I'm sorry?

PN588

VICE PRESIDENT HATCHER: Just slow down.

PN589

MR HARDING: Do you want me to say that again more slowly, your Honour?

PN590

VICE PRESIDENT HATCHER: So The Modified Supported Wage System Demonstration Report 2017.

PN591

MR HARDING: March 2017, that's right.

PN592

VICE PRESIDENT HATCHER: March 2017, thank you. So does any party object to that document being tendered?

PN593

MR WARD: No, your Honour.

PN594

VICE PRESIDENT HATCHER: Right, well do you have copies of that to hand up, Mr Harding?

PN595

MR HARDING: I have a copy, your Honour. We can make them available to the Bench in the course of the day if that assists.

PN596

VICE PRESIDENT HATCHER: Is it likely that witnesses will be taken to that document in cross-examination?

PN597

MR HARDING: Unlikely but in the event that that occurs I will have a document available.

PN598

VICE PRESIDENT HATCHER: Yes, all right. Well, perhaps just hand up that copy and we'll mark that exhibit 2.

EXHIBIT #2 THE MODIFIED SUPPORTED WAGE SYSTEM DEMONSTRATION REPORT, MARCH 2017

PN599

MR HARDING: Yes. If it would assist I can hand you the folder that I have, your Honour, if you want to examine it but - or I can - - -

PN600

VICE PRESIDENT HATCHER: Mr Harding, does that report have any names of disabled persons in it that might raise confidentiality issues?

PN601

MR HARDING: Not as I see it, your Honour, no. The workers are de-identified. They're just referred to as workers, Employee 1, Employee 2, Employee 3 et cetera. Insofar as there are names, there are names of the participants or observers and they're identified on the second page. But as for the workers themselves, no.

PN602

VICE PRESIDENT HATCHER: Right, thank you. If you can just hand up that copy and we'll mark that. Yes, what's the next one?

PN603

MR HARDING: The next one's titled The ARDT Consultants Final Report.

PN604

VICE PRESIDENT HATCHER: Yes.

PN605

MR HARDING: Evaluation of the Modified Supported Wage System Trial, dated 12 October 2016. I'm told that your folder you've just received ought to have that report in it.

PN606

VICE PRESIDENT HATCHER: Right. What was that date again, 12 October - - -

PN607

MR HARDING: 2016.

PN608

VICE PRESIDENT HATCHER: 2016. Is there any objection to that document being tendered? No. so the ARDT Consultants Final Report, Evaluation of the Modified Supported Wage System dated 12 October 2016 will be marked exhibit 3.

EXHIBIT #3 ARDT CONSULTANTS FINAL REPORT, EVALUATION OF THE MODIFIED SUPPORTED WAGE SYSTEM TRIAL, 12/10/2016

PN609

MR HARDING: The third document I wish to tender, your Honour, is titled Productivity Wage Assessment Study Report, March/April 2015, authored by Adrian Pitt. Again that ought to be in the folder of materials.

PN610

VICE PRESIDENT HATCHER: Any objections?

PN611

MR WARD: Your Honour, we haven't seen this yet so I can't comment.

PN612

VICE PRESIDENT HATCHER: Mr Harding, was this - - -

PN613

MR WARD: If I missed it I apologise but - - -

PN614

VICE PRESIDENT HATCHER: Was this document part of the conciliation process?

PN615

MR HARDING: Yes, I'm told it was and the Commonwealth has produced a redacted copy of it.

PN616

VICE PRESIDENT HATCHER: Right.

PN617

MR WARD: It's fairly news to us. I think it might be prudent if we could just have a copy of it and not deal with it straight away and we'll get some instructions, because those on my side of the Bar table are looking very confused at the moment.

PN618

VICE PRESIDENT HATCHER: Right, Mr Harding can we just reserve on that?

PN619

MR HARDING: Of course.

PN620

VICE PRESIDENT HATCHER: Do you have a copy that you can show Mr Ward and we can deal with that later in the day.

PN621

MR HARDING: Yes.

PN622

VICE PRESIDENT HATCHER: Are there any other - - -

PN623

MR HARDING: Sorry, your Honour.

PN624

VICE PRESIDENT HATCHER: Are there any other issues before we call the first witness?

PN625

MR HARDING: Only that we seek an order for witnesses out of court.

PN626

VICE PRESIDENT HATCHER: We'll come back to that. Mr Christodoulou.

PN627

MR CHRISTODOULOU: I just need to clarify that issue, your Honour. As you'd appreciate I did write to the Commission indicating that I'm representing Greenacres and did want to cross-examine Ms Benson, Mr MacFarlane and Mr Cain. Insofar as if there are questions that are not dealt with by ABI that I wanted to reserve my right to ask questions. There was an objection I know filed by AED Legal. I'm not sure that I saw anything come from your Honour in relation to my letter other than the program which would indicate that Greenacres can be here to cross-examine. In the event that that is not the position I would ask to be interposed. I'm here, I can give my evidence first.

PN628

VICE PRESIDENT HATCHER: Did you have any other preliminary issues you wanted to raise, Mr Christodoulou?

PN629

MR CHRISTODOULOU: Sorry?

PN630

VICE PRESIDENT HATCHER: Did you have any other preliminary issues you wanted to raise?

PN631

MR CHRISTODOULOU: No.

PN632

VICE PRESIDENT HATCHER: Mr Stroppiana.

PN633

MR STROPPIANA: Yes, your Honour, just the issue I raised on Monday in relation to the affidavit of Mr Paul Cain, dated 14 December.

PN634

VICE PRESIDENT HATCHER: It seems to be that there was filed and served an unredacted version, so the difficulty may have been that you simply weren't served with one. But you should have one.

PN635

MR STROPPIANA: Thank you, your Honour. The other issue I raised on Monday has already been dealt with, with the valuation report being tendered.

PN636

VICE PRESIDENT HATCHER: Yes, right, thank you. So Mr Harding, Mr Christodoulou's appearing as an advocate as well as a witness, so how best do you say we should accommodate his position?

PN637

MR HARDING: He couldn't be in court. Mr Christodoulou - we objected to Mr Christodoulou cross-examining. He's represented by ABI. He's filed evidence for ABI's proposal and in those circumstances we see no reason why he ought to be here listening to cross-examination, when he himself is the subject of witness evidence.

PN638

VICE PRESIDENT HATCHER: Well, one alternative is that we change the order of witnesses so that he gives evidence first and that objection would dissolve, wouldn't it?

PN639

MR HARDING: Yes.

PN640

VICE PRESIDENT HATCHER: Is there any procedural difficulty in us altering the order of witnesses so that he gives evidence first? Are you ready to proceed with him?

PN641

MR HARDING: Well, I wasn't ready to proceed with him directly, your Honour, because I thought he was coming after the other two, and - - -

PN642

VICE PRESIDENT HATCHER: Well, if we allowed you a short adjournment - - -

PN643

MR HARDING: Yes, well that's right, you could give me a short adjournment that might be of assistance.

PN644

VICE PRESIDENT HATCHER: Right. I think the most practical way to deal with the difficulties is to hear Mr Christodoulou's evidence first. So Mr Harding, we'll allow you a short adjournment until half past. Will that be enough?

PN645

MR HARDING: Yes.

PN646

VICE PRESIDENT HATCHER: To get your documents in order and then we'll start with Mr Christodoulou.

PN647

MR HARDING: Thank you.

PN648

VICE PRESIDENT HATCHER: We'll adjourn until then.

SHORT ADJOURNMENT�� [10.22 AM]

RESUMED�� [10.42 AM]

PN649

VICE PRESIDENT HATCHER: Ready to hear from Mr Christodoulou?

PN650

MR HARDING: We can, your Honour, yes.

PN651

VICE PRESIDENT HATCHER: Right. Mr Christodoulou, come forward.

PN652

THE ASSOCIATE: Please state your full name and address.

PN653

MR CHRISTODOULOU: Chris Christodoulou, (address supplied).

<CHRIS CHRISTODOULOU, AFFIRMED�� [10.43 AM]

EXAMINATION-IN-CHIEF BY MR ZEVARI�� [10.43 AM]

PN654

VICE PRESIDENT HATCHER: Are you calling, Mr Christodoulou?

***�� CHRIS CHRISTODOULOU�� XN MR ZEVARI

PN655

MR ZEVARI: I am, your Honour.

PN656

VICE PRESIDENT HATCHER: Right.

PN657

MR ZEVARI: Is your name Chris Christodoulou?‑‑‑It is.

PN658

You're the chief executive officer of Greenacres Disability Services?‑‑‑I am.

PN659

Have you prepared three statements in these proceedings, dated respectively 21 September 2017, 15 November 2017 and 8 November 2017?‑‑‑I have.

PN660

Are there any amendments you wish to make to any of those statements?‑‑‑I think I have a resume, my resume wasn't correct and there's an additional page on my resume that needs to go in.

PN661

Was that attached to your first statement, Mr Christodoulou?‑‑‑Yes.

PN662

Your Honour, a copy of the missing page has been emailed to the Commission. I have a bundle containing that page. I've checked with Mr Harding and I understand there's no objection in terms of that additional document.

PN663

VICE PRESIDENT HATCHER: We'll have that page added to our copy.

PN664

MR ZEVARI: Yes, I can hand up this bundle. Mr Christodoulou, just for the purpose of the transcript that's page 2 of your CV?‑‑‑Yes.

PN665

Thank you. Attached to your first statement?‑‑‑Mr Zevari, can I just check the date of my witness statement? Did you say 8 December 2017?

PN666

8 November?‑‑‑Mine is dated 8 December 2017.

PN667

Yes, that's correct.

PN668

VICE PRESIDENT HATCHER: Sorry, what was that date, Mr Zevari?

***�� CHRIS CHRISTODOULOU�� XN MR ZEVARI

PN669

MR ZEVARI: 8 December - - -

PN670

VICE PRESIDENT HATCHER: That's the third one.

PN671

MR ZEVARI: I beg your pardon, that's my error. So you have those three statements in front of you, Mr Christodoulou?‑‑‑Yes, I do.

PN672

Subject to the additional page that you've just discussed, are the three statements true to the best of your knowledge, recollection and belief?‑‑‑Yes, they are.

PN673

Do you wish to adopt these statements as your evidence in these proceedings?‑‑‑Yes, I do.

PN674

Your Honour, subject to objections I seek to tender those.

PN675

MR HARDING: There are objections, your Honour.

PN676

VICE PRESIDENT HATCHER: Sorry?

PN677

MR HARDING: There are objections.

PN678

VICE PRESIDENT HATCHER: Yes.

PN679

MR HARDING: Perhaps if I take you through the statements. The first - if I can refer to Mr Christodoulou's first statement as the first statement, paragraphs 46 and 47 and annexure H. The basis for the objection is relevance to any of the facts in issue before this Full Bench.

PN680

VICE PRESIDENT HATCHER: What's the relevance of this, Mr Zevari?

PN681

MR ZEVARI: Your Honour, there's been a great deal of evidence filed in these proceedings including from a number of supported employees, which has not been objected to by AED Legal. We say that the material at paragraphs 46 and 47 including attachment 8 is of probative value in terms of setting out the view of supported employees in terms of their employment, and we say that's relevant to the matter before this Commission, in light of the considerations that the Commission has with regard to the modern award objective and the minimum wage objective, your Honour.

***�� CHRIS CHRISTODOULOU�� XN MR ZEVARI

PN682

VICE PRESIDENT HATCHER: We'll allow it in subject to any submissions about weight. Mr Harding, you might get the hint.

PN683

MR HARDING: I do get the hint, not that I hadn't anticipated that, your Honour, and I will press on and see how far that hint goes. As to the second statement, we object to paragraphs 30 and 31. I apologise - - -

PN684

VICE PRESIDENT HATCHER: We had a list from you earlier, I think, which starts at 12 - - -

PN685

MR HARDING: Yes, I'm not pressing all of them in anticipation. I won't press that 30 and 31 either by the way, your Honour. It's 32 to 36, I think.

PN686

VICE PRESIDENT HATCHER: 32 and - - -

PN687

MR HARDING: 32 through to 46, I think.

PN688

VICE PRESIDENT HATCHER: What's the objection? I mean this goes to an issue about the extent to which supported employees are able to be transitioned into open employment, doesn't it, which I would have thought is relevant.

PN689

MR HARDING: Yes. I won't press that, your Honour.

PN690

VICE PRESIDENT HATCHER: Right.

PN691

MR HARDING: Your Honour, I have confused the witness statements in fact with the objection that I was taking you to earlier was objections in the second witness statement rather than the third, and I was looking at the third. If I can just get that folder. Yes, paragraphs 30 and 31 of the further witness statement of Mr Christodoulou, dated 15 November 2017, contains some evidence about his understanding pertaining to the actions of advocacy groups and then in paragraph 31 he has some attachments of websites. With respect, your Honour, that's entirely irrelevant.

PN692

VICE PRESIDENT HATCHER: Mr Zevari.

***�� CHRIS CHRISTODOULOU�� XN MR ZEVARI

PN693

MR ZEVARI: Your Honour, these are documents that are matters of public record and they will be matters that will be put to the relevant witnesses. Mr Christodoulou's doing no more than giving evidence about his understanding and attaching documents that are publically available, and subject to weight we don't agree with the basis for an objection, your Honour.

PN694

VICE PRESIDENT HATCHER: We'll allow the paragraphs subject to weight.

PN695

MR HARDING: Heart in hand, your Honour, I then refer to the third witness statement of Mr Christodoulou, paragraphs 2 to 4.

PN696

VICE PRESIDENT HATCHER: Sorry, which paragraphs?

PN697

MR HARDING: Two to 4 of the third statement. The objection is it's hearsay but it's a species of hearsay that's entirely untestable.

PN698

VICE PRESIDENT HATCHER: Well, unfortunately the witness is not available to be cross-examined so it would admissible on that basis wouldn't it?

PN699

MR HARDING: It would under the Evidence Act, yes, I concede that.

PN700

VICE PRESIDENT HATCHER: We'll allow the paragraphs on that basis.

PN701

MR HARDING: Yes, they're the objections, your Honour.

PN702

VICE PRESIDENT HATCHER: Thank you. I'll mark the statements. The statement Chris Christodoulou dated 21 September 2017 will be marked exhibit 4. The second statement of Chris Christodoulou dated 15 November 2017 will be marked exhibit 5 and the third statement dated 8 December 2017 will be marked exhibit 6.

EXHIBIT #4 STATEMENT OF CHRIS CHRISTODOULOU DATED 21/09/2017

EXHIBIT #5 STATEMENT OF CHRIS CHRISTODOULOU DATED 15/11/2017

EXHIBIT #6 STATEMENT OF CHRIS CHRISTODOULOU DATED 08/12/2017

***�� CHRIS CHRISTODOULOU�� XN MR ZEVARI

PN703

MR ZEVARI: Your Honour, did you wish me to hand up a bundle with the additional page? I've only got one bundle - I've got - I can do that or perhaps I can just provide the missing - - -

PN704

VICE PRESIDENT HATCHER: Someone just handed up a bundle.

PN705

MR ZEVARI: I beg your pardon, yes, thank you.

PN706

VICE PRESIDENT HATCHER: Right, Mr Harding.

CROSS-EXAMINATION BY MR HARDING�� [10.52 AM]

PN707

MR HARDING: Thank you, your Honour. Mr Christodoulou, you've filed a number of witness statements and if you've got a first statement handy please?‑‑‑Yes.

PN708

You say there that Greenacres uses its own wage assessment tool and that's the Greenacres wage assessment tool isn't it?‑‑‑Yes.

PN709

That you say you prefer to use the same approach as the other employers do?‑‑‑Sorry, whereabouts are you referring Mr Harding?

PN710

Paragraph 27 of your first statement?‑‑‑Yes.

PN711

But you support the proposed wage assessment tool that has been put forward in these proceedings by ABI and the New South Wales Business Chamber?‑‑‑I do.

PN712

In relation to that, Mr Christodoulou, you would be content would you not to have that proposal in the award if that was the decision of the Commission?‑‑‑Yes.

PN713

Even if it didn't retain the Greenacres tool?‑‑‑If the Greenacres tool can't be retained I'd be happy with the proposal put forward by ABI.

PN714

Yes. You accept don't you that clause 14.4 of the award that you're familiar with I take it?‑‑‑Yes, yes.

PN715

You are, or not?‑‑‑Well, I'm familiar that that's the cause that that's the clause that has the tools named in it, yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN716

That entitles an employer to choose any one of those tools doesn't it?‑‑‑Yes.

PN717

In relation to that, if the proposal of ABI is successful you would choose that tool?‑‑‑In the absence of Greenacres not being available, yes.

PN718

Well it's not necessary is it if it's in the - if you've got two tools, you accept both are fair, which I assume you do?‑‑‑Yes.

PN719

Then you would have no difficulty with the ADE tool?‑‑‑Yes.

PN720

Your complaint is with the SWS?‑‑‑Yes.

PN721

As the only method of wage assessment. Is that right?‑‑‑That's right.

PN722

You're no wage assessor yourself are you?‑‑‑No.

PN723

You've never conducted an SWS assessment yourself?‑‑‑No.

PN724

Because you're not qualified?‑‑‑No.

PN725

It's right to say that Greenacres has not itself trialled the modified SWS is it?‑‑‑When you say Greenacres itself, do you mean - well let me qualify that. We have brought in a qualified SWS company to conduct a number of trials on our employees.

PN726

This is the leave assessments?‑‑‑That's right.

PN727

We'll go to that in a minute. It's the case isn't it, Mr Christodoulou, that the Greenacres receives a considerable amount of government funding for the provision of the employment services if I can use that phrase, in respect of your disabled employees?‑‑‑It's the same amount as most other disability enterprises.

PN728

Yes, that's right. That funding consists of an amount per employee?‑‑‑Yes.

PN729

Also an amount for the provision of support to the employee?‑‑‑Well, it's one amount per employee.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN730

Yes, well there's additional moneys and they're available if you were to apply for it?‑‑‑I'm not sure because we've not gone down that path.

PN731

You haven't gone down that path?‑‑‑No - - -

PN732

So you don't know?‑‑‑ - - - we only receive DMI funding for our employees.

PN733

Yes, well you haven't gone down that path because you haven't applied for it. Is that right?‑‑‑Well, I wasn't - I wasn't even aware it was there because that's not the path that we've gone down.

PN734

You would be familiar or you would know, would you not, that the Commonwealth fund ADEs including the ADE that Greenacres operates or the ADEs that Greenacres operates according to certain operational guidelines, doesn't it?‑‑‑Yes.

PN735

If I could show you that please, and I'll hand up some copies to the Bench at the same time. This document is titled Operational Guidelines Disability Employment Assistance and after a very long set of definitions on page 11, 1.1 tells us that these are the operational guidelines that provide an overview of the operational framework for delivering supported employment services and form the basis of the funding relationship between the Department of Social Services and ADEs, yes?‑‑‑Yes, I've not read all that section but I don't disbelieve him. Can I just indicate that I don't - I don't normally deal directly with these documents as the CEO. They go to our general manager of our disability services and our finance manager.

PN736

So you don't know the basis upon which the Commonwealth fund, your - - ?‑‑‑I know the basis of this that we get funded by DMI funding, so there's four levels of DMI funding which is transitioned to one level under the NDIS, and that is a primary basis of funding that we receive.

PN737

So you know the heads of funding but you don't know the detail or the conditions under which it's given?‑‑‑Not the whole of this document, no.

PN738

Have you seen this document before?‑‑‑I can recollect a document similar to this, 2016, I can't say that I can remember this in detail, there may be other versions but I have seen similar documents.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN739

Mr Christodoulou, let's have a look through it. Page 21. This tells us that there will be an employment maintenance fee paid for each employee monthly in arrears?‑‑‑Yes.

PN740

Paragraph 22.1?‑‑‑Yes, that's right.

PN741

22.2 says that employment maintenance fees are paid at one of four funding levels and that correspondences with your understanding, doesn't it?‑‑‑That's exactly right.

PN742

If you could then - sorry to flick through the pages. If you go back to page 11, paragraph 2.1, it tells us doesn't it that funding for supported employees provided by ADEs is gradually being made available through the NDIS. That's your understanding, isn't it?‑‑‑That's right.

PN743

Under the NDIS there will be an individual support plan for each individual worker?‑‑‑Yes.

PN744

There will be funding attached for that?‑‑‑That's right.

PN745

According to the assessment of that individual's needs in the - yes?‑‑‑Yes, but as I understand it at the moment that funding that will be attached to that individual worker insofar as their desire to work in a disability enterprise, I think will be an average of the DMI funding that we've received previously.

PN746

Do you know that for sure? You said that's your understanding?‑‑‑Well, that is my understanding.

PN747

But you don't know that for sure, do you?‑‑‑Well, I'm fairly confident about that.

PN748

Are you confident - you didn't know the details of the operational funds that the Commonwealth provides though?‑‑‑Well, I'm fairly confident about that, Mr Harding.

PN749

If we can keep on going. Page 14, please. In 8.1 under the heading Enhancing Performance, it tells us:

PN750

The NDIS is a new way of providing individualised support for eligible people.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN751

That's what we've just been discussing, yes?‑‑‑Yes.

PN752

That corresponds with your understanding?‑‑‑Yes.

PN753

The expectation of the Commonwealth is set out in 8.2, isn't it, which is that there will be flexibility choice, individualisation and customer driven outcomes?‑‑‑Yes.

PN754

Then in 8.3, the expectation on ADEs under the NDIS will be that there will be the things that are set out in (a) to (e) of 8.3. Do you agree with those?‑‑‑Yes.

PN755

Including the expectation on ADEs that you build a robust, thriving commercial business?‑‑‑Yes.

PN756

That's the expectation isn't it?‑‑‑Yes.

PN757

That ADEs therefore will be providing commercial activities which is intended to raise funds to cover the costs of its operation?‑‑‑Yes.

PN758

The expectation is that there's further set out in clause 9.4 and 9.5 isn't it, which is there's going to be an expectation by the Commonwealth if there isn't already that ADEs develop what are called robust business structures and financial controls and enable the generation of sufficient income to cope with the peaks and troughs and demand for goods and services?‑‑‑Which we endeavour to do now.

PN759

You endeavour to do that now and the expectation in the future is that the Commonwealth - well, the Commonwealth's expectation is that you will continue to do that?‑‑‑Yes.

PN760

You know don't you that the Commonwealth has told this Commission that it will ensure that its policy settings will maintain the viability of ADEs?‑‑‑I'm not sure where it said that to the Commission.

PN761

In a submission in December. Are you aware of that?‑‑‑If you could just recollect my memory please, Mr Harding.

PN762

The letter dated 8 November 2017 from Mr Catherine Campbell. You haven't read this?‑‑‑Well, I'd need to have a look at it, Mr Harding, just to make sure that I can - - -

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN763

MR ZEVARI: Your Honour, could Mr Christodoulou be taken to the relevant document?

PN764

VICE PRESIDENT HATCHER: Mr Harding, do you propose to take him to the document at some stage or - - -

PN765

MR HARDING: I have one copy of the document. I can read him the section and then - if that assists.

PN766

VICE PRESIDENT HATCHER: What is this document?

PN767

MR HARDING: It's a document addressed to you, your Honour, dated 8 November 2017. It's on the website. It's in relation to this matter. It's headed , "Concerning matter AM2014/286". Happy to show the witness if that assists.

PN768

VICE PRESIDENT HATCHER: Who's it from?

PN769

MR HARDING: Ms Catherine Campbell, who's the secretary - I withdraw that. It's on the heading "Australian Government Department of Social Services", and she's identified herself as the secretary of the Department.

PN770

VICE PRESIDENT HATCHER: Right, why don't you just proceed and ask the question you want to ask.

PN771

MR HARDING: Yes, right. Mr Christodoulou, Ms Campbell has - you'll just have to take my word for it if you don't know - has filed a statement in this or a letter in this proceeding, as I've indicated and in that letter she says in the last paragraph:

PN772

The government will continue to follow the proceedings in the Commission -

PN773

That's these proceedings -

PN774

and ensure future policy settings allow for the ongoing viability of Australian disability enterprises for employees, their families and carers and businesses.

PN775

?‑‑‑Yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN776

You're aware of that?‑‑‑Yes, I'm aware of that.

PN777

You are aware of that. She also says in that paragraph that the government believes that the question of which tool ought to go in the award is a matter for the award parties and the Fair Work Commission?‑‑‑Yes, I do recall that letter.

PN778

In those circumstances she's saying that regardless of what decision this Commission makes, the Australian government will ensure the future policy settings will allow for the ongoing viability of ADEs?‑‑‑That's what she says.

PN779

Yes. Well, that's what she says. She's representing the government in this proceeding?‑‑‑Well, Mr Harding, we've had meetings with ministers, we've had meetings with representatives from the Department visiting Greenacres and they have told me directly at a boardroom that they can't make any promises beyond the funding that they have already put on the table, which they say would be available to ADEs in the event that they transfer to the SWS. If that is the only policy that they have available then that will not sustain ADEs in our circumstance.

PN780

Well that's your view, isn't it?‑‑‑It is my view definitely.

PN781

Yes, and what I'm saying to you, Mr Christodoulou, that the question of funding is a really a matter between ADEs and government isn't it?‑‑‑Absolutely.

PN782

If I can go back to the document that I was showing to you, paragraph 8.2, what it tells us is that:

PN783

Individualised funding is likely to ultimately mean consumers -

PN784

and where that phrase consumers appears, they're referring to people with disabilities aren't they?‑‑‑Yes.

PN785

Continuing:

PN786

Will be looking for services offering the best working conditions, flexibility, choice and best value for their funding dollar.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN787

That's the expectation of government in respect of ADEs?‑‑‑Well, I'm not - I don't see the words, "best working conditions" in there, Mr Harding.

PN788

Are you looking at paragraph 8.2 of the document I took you to?‑‑‑Yes, let me have a look, it says, "Flexibility, choice" - - -

PN789

Second sentence?‑‑‑Second sentence. Is this 8.2, second sentence?

PN790

Yes?‑‑‑Hold on.

PN791

Starts, "Individualised funding"?‑‑‑Yes. Yes, sorry, I take that back.

PN792

So the expectation of government as it's been conveyed to you is this, isn't it? That employees will be looking for the best working conditions they can get. That's fair isn't it?‑‑‑Yes.

PN793

The expectation on ADEs is that you will operate commercially?‑‑‑Yes.

PN794

And pay for your wage costs?‑‑‑Yes.

PN795

Do so commercially?‑‑‑Well, as best we can, Mr Harding.

PN796

Yes. I tender that - those operational guidelines, your Honour.

PN797

VICE PRESIDENT HATCHER: Any objection?

PN798

MR ZEVARI: No, your Honour.

PN799

VICE PRESIDENT HATCHER: document entitled, "Australian Government Department of Social Services, operational guidelines disability employment assistance dated October 2016", will be marked exhibit 7.

EXHIBIT #7 AUSTRALIAN GOVERNMENT DEPARTMENT OF SOCIAL SERVICES, OPERATIONAL GUIDELINES DISABILITY EMPLOYMENT ASSISTANCE DATED OCTOBER 2016

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN800

MR HARDING: Thank you. Your Honour, I've taken the witness to Ms Campbell's letter and cross-examined him on it and he's identified it as being something he recognises. It has been filed. Do you wish to tender that? Well I propose to tender it, it might be the best and most efficient way of dealing with it.

PN801

VICE PRESIDENT HATCHER: Any objection?

PN802

MR ZEVARI: No, your Honour.

PN803

VICE PRESIDENT HATCHER: Letter addressed to the Commission from the Australian Government Department of Social Services, signed by Catherine Campbell, dated 8 November 2017 will be marked exhibit 8.

EXHIBIT #8 LETTER ADDRESSED TO THE COMMISSION FROM CATHERINE CAMPBELL, AUSTRALIAN GOVERNMENT DEPARTMENT OF SOCIAL SERVICES DATED 08/11/2017

PN804

MR HARDING: Thank you. Mr Christodoulou, I think you've given evidence that it's your view that the SWS is archaic speed test. That'd be a fair summary of your evidence?‑‑‑Yes.

PN805

Notwithstanding the fact that you don't use it in Greenacres?‑‑‑But we understand it.

PN806

You've never had any experience of applying it yourself?‑‑‑Personally, no.

PN807

You also say that it's inappropriate for those with intellectual disabilities. Is that your evidence?‑‑‑Have I written that in my document?

PN808

I'm not - I'm just asking a question?‑‑‑Well, I'm not sure whether you're taking me to anything in my witness statement.

PN809

What's your evidence?‑‑‑But yes, I don't think it would be appropriate in some circumstances. I don't think the tool is a useful tool to assess a person's skills and capabilities.

PN810

Are you aware of evidence filed in this proceeding by Mr Cain that indicates that the majority of persons who are assessed under the SWS in open employment are those with intellectual disabilities?‑‑‑I disagree with that.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN811

Well, he is basing that on a valuation undertaken by the Commonwealth?‑‑‑Well, I've seen a recent document by the Commonwealth in relation to the evaluation of DES programs, and the number of people - and the DES program are one method by which people get into open employment that have a disability - - -

PN812

VICE PRESIDENT HATCHER: Sorry, Mr Christodoulou, just for the record , DES is D - - -?‑‑‑Sorry, Disability Employment Service and in that document Mr Harding - and most of it, we did run a disability employment service and if we were to place someone in open employment and we thought that they required something less than the award wage in consultation with the employer, then we're obliged to use the SWS. Not us but to have an SWS assessor come in.

PN813

MR HARDING: Yes?‑‑‑And in the document's latest discussion paper it says that I think it's something like 44 per cent of people under DES have a physical disability. It then goes onto talk about 34 per cent having I think a mental disability and then only 4 per cent having an intellectual disability. So I'm not - you know, my view would be that those states would indicate to me if DES is a major service to provide employment options for people with disabilities in open employment, those stats would indicate to me that there's lower numbers of people with intellectual disabilities that have been assessed under the SWS.

PN814

Have you read the material attached to Mr Cain's statement?‑‑‑I have but I can't recollect them all right now.

PN815

You've been in this area a long time, haven't you, Mr Christodoulou?‑‑‑Beg yours?

PN816

You've been in this area a long time haven't you?‑‑‑Well, I've been employed with Greenacres for five years, yes.

PN817

Before then you've given evidence about your involvement in development and wage assessments all as anion official?‑‑‑Well, that was back in the late 80s, early 90s, which is a while back.

PN818

Have you read the supported wage system evaluation of 2000?‑‑‑Of 2000?

PN819

Yes?‑‑‑No, I can't say I've read it word for word.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN820

You haven't read it word for word but it speaks for itself I suppose. You have no particular evidence yourself that undermines the findings of that report?‑‑‑Well, I haven't read the report and I can't remember its contents.

PN821

Now in relation to the Greenacres tool, if I can hand the witness what will be annexure A, I hope, of Ms Kairstien Wilson's statement?‑‑‑Yes.

PN822

Got that?‑‑‑Yes.

PN823

The document I'm looking at so we're all on the same page is titled "Final Report" dated 16 February 2005?‑‑‑Yes.

PN824

Often referred to as the Pearson report, appears in a number of witness statements filed in these proceedings, your Honours and Commissioner but it was principally put into evidence - - -

PN825

VICE PRESIDENT HATCHER: Sorry, did you say attachment A to exhibit 1, did you?

PN826

MR HARDING: Yes.

PN827

VICE PRESIDENT HATCHER: Is this dated 12 April 2006?

PN828

MR HARDING: I've got 16 February 2006(sic), let me just have a look, your Honour. There is a 12 April 2006 which is, but the one I'm looking at is dated 16 February 2005.

PN829

SPEAKER: It's not attachment A.

PN830

VICE PRESIDENT HATCHER: The one attached to Ms Wilson's statement is 12 April 2006.

PN831

MR HARDING: Right. I think if you go to page 34 of that document?‑‑‑Yes.

PN832

This describes - it says the Greenacres competency based wages tool?‑‑‑Yes.

PN833

On page 36 - 35 rather?‑‑‑Yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN834

This tells us what the three elements of the tool are doesn't it?‑‑‑That's right.

PN835

It's right, if we can move through the document then, on page 43?‑‑‑Yes.

PN836

You've got the various classifications. Do you agree with that?‑‑‑The wage levels, percentage levels, yes.

PN837

Yes, well they're classifications aren't they?‑‑‑Well, they're wage levels, yes.

PN838

The way they work isn't it that someone is first classified within A, B, C, D or E, based on an assessment of that worker's tasks, skills and underpinning work skills?‑‑‑Yes, well they're assessed and they're put into the appropriate level.

PN839

Into one of these levels?‑‑‑That's right.

PN840

Then there is a third element called productivity?‑‑‑Yes.

PN841

Is only relevant in relation to moving between the bands, so from entry, competent and advanced?‑‑‑So within each level there is a productivity component. So the productivity component does not go beyond each level. So if you're in level A, you'll either be in 12.5, 15 or 17.5 in Level D. Yes, there'll be three productivity points.

PN842

VICE PRESIDENT HATCHER: Do I recollect it's saying that that's to assess by reference to the cohort in the wage level not by reference to a non-disabled person?‑‑‑Yes, that's right. It is - the benchmark is within the cohort, that's supported employees versus other supported employees.

PN843

MR HARDING: Yes, and so that - yes, so the benchmark is different from the SWS in that sense isn't it because the SWS is benchmarked against non-disabled workers?‑‑‑That's right.

PN844

But you benchmark it against disabled workers?‑‑‑That's right. Once we've - once they've been put into their appropriate level, it's a way of rewarding supported employees who might have a slightly better level of productivity.

PN845

This classification system goes up to 55 per cent of the modern award rate?‑‑‑That's right.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN846

After which it's the SWS isn't it?‑‑‑Well, yes, once it gets to EA advanced the employer can have the employee assessed under the SWS.

PN847

Well what it says on page 43 is:

PN848

Employees above 55 per cent wage level are assessed through the SWS.

PN849

?‑‑‑The tool - our tool - the tool doesn't quite say that but yes, that's the intention, definitely.

PN850

So Greenacres still uses the SWS?‑‑‑Yes.

PN851

So it can't be too archaic can it?‑‑‑Well, if you go and look at the tool itself it will explicitly tell you what happens when you get to 55 per cent. I don't think it says you must but I think the intention always was that you should.

PN852

So you could have someone assessed at more than 55 per cent under one of these - under the tool for underpinning work skills and task skills?‑‑‑No, no, the intention is - Mr Harding, you're right, once you get to 55 per cent the employer should have the employee assessed under an SWS. We've done one recently. Because they got to EA and then we decided to assess them, yes.

PN853

Yes, so the Greenacres tool itself recognises the value of the SWS above 55 per cent?‑‑‑At the time and I can't - I wasn't the constructor of the tool and I can only rely upon what I was told about it by the constructor which was Mr Preston, whose view was - when I asked him about that aspect of it, said that when a person got to 55 per cent they probably had the necessary skills that would probably allow them to work in open employment, still with a legal of support, and therefore in those circumstances the results of the SWS probably wouldn't be as perverse and therefore you could - you could and probably could assess them under the SWS. Bearing in mind it was also I think a compromise at the time in their negotiations that they were having internally about whether the SWS was appropriate at all.

PN854

Mr Christodoulou, you have said in your evidence and publically that the SWS is a speed test - - -?‑‑‑Yes.

PN855

- - - and it's archaic?‑‑‑Yes. And I - that's my position.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN856

The Greenacres tool, your own organisation's tool uses the SWS?‑‑‑That's right.

PN857

Yes, that's a fact isn't it?‑‑‑It is a fact but I never constructed the tool.

PN858

Well I'm not asking you about who constructed it, I'm asking you about the facts. The fact is the Greenacres tool uses the SWS?‑‑‑Yes, it does.

PN859

For almost half of the award wage?‑‑‑Yes.

PN860

VICE PRESIDENT HATCHER: Mr Christodoulou, at Greenacres sites can you remind me did you have any SWS assessed employees working in your ADEs?‑‑‑We've only - we had one - two people - three actually. One that's been there for quite a while who went under - who was assessed under - who came in as a supported employee under our tool and at a particular point no, we didn't assess under SWS, he just went straight to full award wages because he was performing so well. We've had another person come from a DES program and again in those circumstances we decided not to assess and took them straight to a full award wage. The more recent one I can think of is one our sewing machinists who was at 55 per cent, advanced under our tool, had her assessed under SWS and the result was lower than what we were paying her, and we kept her at her 55 per cent rate by exchange of letters with the union.

PN861

MR HARDING: All these are in the actions you've taken as the employer, haven't you?‑‑‑Yes.

PN862

You've made these decisions?‑‑‑Yes.

PN863

If I can then flick through again at the document - the Pearson report of April?‑‑‑Yes, yes.

PN864

If you go through - if you go to page 36?‑‑‑Yes.

PN865

This contains a description of the kinds of skills that apparently relate to the wage level?‑‑‑Yes.

PN866

Do you accept this is accurate?‑‑‑To be honest I haven't read the Pearson report.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN867

Well let's have a look at page 36 then. What it tells us is that wage level A, the second paragraph, there are tasks which demand a variety of basic skills. See that?‑‑‑Yes.

PN868

Wage level E:

PN869

The employee performs all job specific maintenance and basic repair tasks.

PN870

Yes?‑‑‑Yes.

PN871

Then at the bottom of the page you get by wage level E, which is at maximum 55 per cent of the award.

PN872

There's autonomous performance of all manual and automated tasks for work section.

PN873

That's accurate?‑‑‑No, I wouldn't - I wouldn't describe that as accurate. When they use the word autonomous, they use it in the - in terms of our tool, if you go to out tool and read our tool there's certainly words of independent and team leader, but they are in the context of what one would expect of a grade 2 workers, and with the level of support that you apply to a grade 3 worker. So for argument's sake, when we say someone's independent, it means that we can give them a task or a job to do, they're still under direct supervision and they still may require training and support but they basically don't need ongoing one on one intervention. They can basically - - -

PN874

That's a lot of information?‑‑‑Mm?

PN875

So you've got all that in your head about how you assess it?‑‑‑Well, because I know a fair bit about the tool, Mr Harding, because what happens when someone gets a wage level at Greenacres or goes up a skill level, there are reports given firstly by the trainer, then by the supervisor that go to the operations manager to sign off, then the general manager and I'm the last to sign off. They are detailed reports about how people are fulfilling the criteria under the tool, which would allow to get a wage increase. So to that extent I get to read these reports.

PN876

So you're basing that on your assessment of reports prepared by your supervisors at Greenacres?‑‑‑And trainers, yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN877

And you would accept wouldn't you that Greenacres tool is used by a number of ADEs?‑‑‑Yes.

PN878

To sell to them?‑‑‑Well, no, can I just say, since I've been the CEO we've never sold the tool to anybody and nor had we sold the tool, and we certainly didn't sell the tool after the BSWAT. We have provided some training to organisations.

PN879

I understand that. So other organisations use the tool?‑‑‑Yes.

PN880

Because it's in the award, it's one of the choices?‑‑‑Yes.

PN881

You'd also be aware that the award says that the descriptions of the tools - - -?‑‑‑Yes.

PN882

- - - are contained in the reports that are mentioned in the award. Are you familiar with that?‑‑‑No, no, can you just - - -

PN883

I'll take you to the award?‑‑‑Yes.

PN884

If you look at clause 14.4 on page 14 of the modern award?‑‑‑Yes.

PN885

You'll see there the clause that is exciting so much attention in these proceedings?‑‑‑Yes.

PN886

The Greenacres tool appears at (vi)?‑‑‑That's right.

PN887

Then it tells us that - if you go over the page, page 15?‑‑‑Yes.

PN888

Wage assessment tools, clauses 14.1 through to I think 22, described in the final report dated 12 April 2006, and that's the report we've been discussing. See that?‑‑‑Just - which clause are you looking at?

PN889

D?‑‑‑D. Yes.

PN890

Then there's another report of 18 October 2017, see that?‑‑‑Yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN891

So for anyone who's reading the modern award who's using your tool, they can be informed about what the descriptions of the tools are by reading these reports. That's a fair reading of that clause isn't it?‑‑‑Yes.

PN892

Let's go back to the report. Do you accept that on page 36, wage level E talks about autonomous performance of all manual and automated tasks for work sections as a skill within wage Level E?‑‑‑That's what that says, yes.

PN893

That's what it says. Then if you go to the next page, it tells you that that person oversees small groups of employees for limited periods?‑‑‑Yes.

PN894

So a natural inference arising from that is that there are supervisory responsibilities that go with wage level E?‑‑‑By reading this, yes.

PN895

Yes, it does say that doesn't it?

PN896

COMMISSIONER CAMBRIDGE: I'm sorry to interrupt but why would that numbering be like that? Are there pieces that are omitted? It's got 1 to 3 to 6 to 7 to 10 to 12.

PN897

MR HARDING: I don't know is the short point. I've got a - as I understand it, Commissioner, this is a full report of the report. I can't explain why it is that - - -

PN898

COMMISSIONER CAMBRIDGE: Well, the author says that wage level E includes these tasks skills so presumably she selected some of them from some other document.

PN899

MR HARDING: Maybe it - yes. Doesn't explain it.

PN900

COMMISSIONER CAMBRIDGE: From the actual tool. From the actual tool. So this isn't actually the tool. This is where looking at the award if you just use this as the - you might not be getting the complete picture.

PN901

MR HARDING: Well, the award tells us these are what the - this is where the descriptions are on the tool.

PN902

COMMISSIONER CAMBRIDGE: But it doesn't look like it's a complete description.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN903

MR HARDING: I don't know. It just says - well wage level E, the tasks skills include and as his Honour has observed it's possible that she's selecting from the tool itself.

PN904

COMMISSIONER CAMBRIDGE: Whereas above the tasks for wage level AR.

PN905

MR HARDING: Yes. You might be right, Commissioner, it might be that the tool has these things in it and she's - in relation to A she's picking from all of them or by E she's selecting from some of them but what I think you ought to - what the award tells us is this is how the tool's described. If I can go back to the award, Mr Christodoulou, and page 35 contains the classifications for the award. Are you familiar with the award?‑‑‑I am somewhat familiar. We have our own enterprise agreement but in the main it derives from the award.

PN906

So the award contains work - a description of work by reference to various grades?‑‑‑Yes.

PN907

Commencing with grade 2?‑‑‑Yes.

PN908

That tells us that's a training grade?‑‑‑Yes.

PN909

Then grade 2 and this tells us what - by B.2.2 what the employees at this level would - what skills they would have in A, and perhaps C, and then also the supervision that would be applied to them in B, yes?‑‑‑Yes.

PN910

Then we've got a number of indicative task skills, yes?‑‑‑That's right.

PN911

You would accept would you not that when you go through the list of indicative task skills, many of them are particular tasks described that are delineated by the words "and" or "or". Do you see that?‑‑‑So the - - -

PN912

It's got an example of engineering, for instance, the first point which is A?‑‑‑Yes.

PN913

It goes on to say - the first is "repetition of work on automatic"?‑‑‑Yes.

PN914

Then the last one is "uses hand trolleys"?‑‑‑Yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN915

The words immediately above it, "boiler cleaning" and then "and" and "or"?‑‑‑Yes.

PN916

So you either - the person doing these tasks accumulatively is entitled to a rate in grade 2 or performing one of those tasks would also be entitled to a rate at grade 2, yes?‑‑‑Yes, you could interpret it that way.

PN917

Can I suggest to you that it's only by grade 4 on page 42 that there is any indication of any supervisory responsibility is forming part of the work in the grade?‑‑‑That's right.

PN918

Yet according to this description, an employee at grade level E would be overseeing small groups of employees, or could be asked to?‑‑‑The description in the Pearson report?

PN919

Yes?‑‑‑Yes, that's what that says.

PN920

Under your tool, Greenacres tool, that person would be paid a maximum of 55 per cent of the award at grade 2?‑‑‑Well, if that's the person - I don't think that that is the type of person that you're describing actually is a supervisor in the true sense of the word. I can give you what happens at Greenacres if you like, Mr Harding, in terms of how we apply that level to a person that might be described as a team leader.

PN921

Well what you apply at Greenacres is not necessarily what other ADEs apply who use your tool?‑‑‑I don't know how other ADEs apply the tool.

PN922

No, but you would say a fair reading of the Pearson report would entitled the - an ADE who was wanting to apply your tool to read the tool in conjunction with the Pearson report and form a view about how to apply it. That's a fair reading isn't it?‑‑‑Possibly.

PN923

Well it's a fair reading, isn't it?‑‑‑Well, if I was an employer I would read the tool and I would familiarise myself with how to train people under the tool and some employers have chosen to do that and others I presume haven't.

PN924

VICE PRESIDENT HATCHER: Mr Christodoulou, the actual what you describe as the tool is what's set out in attachment 1 to exhibit 5, your second statement?‑‑‑I think so, yes, your Honour. In my statement, yes.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN925

MR HARDING: Is that the first statement?

PN926

VICE PRESIDENT HATCHER: Second statement?‑‑‑Yes, your Honour, that is the tool.

PN927

MR HARDING: What attachment?‑‑‑Attachment 1 of my statement dated the 15th of the 11th, Mr Harding.

PN928

VICE PRESIDENT HATCHER: So we find in there what are the criteria for level E?‑‑‑Yes, there would be criteria in there, your Honour. So I think they're on - there's no page numbers here but it's the - there is a level E descriptor, it says "Typically" - - -

PN929

I'm looking at the attachment 2 to the - - -?‑‑‑Yes, that's it.

PN930

Which sets out in tabular form what's required?‑‑‑Yes.

PN931

Does that say anything about supervisor?

PN932

COMMISSIONER CAMBRIDGE: "Oversee small groups of employees for limited periods", that's on page 61. Pieces of this have just been extracted and put it into the report?‑‑‑Yes, yes, the Commissioner is right. At the very bottom it says, "overseas small groups of employees for limited periods."

PN933

MR HARDING: So it forms part of the tool?‑‑‑Yes.

PN934

I am looking at attachment 2 as well, no page numbers but in relation to wage level E, point 2 on the right hand column, "underpinning work skills", is that someone should encourage co-workers to maintain on task behaviour?‑‑‑Yes, that's right.

PN935

That is also consistent with some supervisory responsibility isn't it?‑‑‑Well, when you have a trainer and supervisor in close proximity you have one worker with a lower support need that might be at level E and they find that the supported employee next to them, I guess I'll use the word, not on task or not behaving well, they can encourage them. We actually encourage as part of our training to have the supported employee do that as part of them building their self-esteem and building their skills towards being a person that could operate in an open employment environment.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN936

Yes, so you can ask or expect or perhaps even encourage a worker to take on those functions?‑‑‑Yes, we never direct a worker to take on those functions.

PN937

They will be functions, if the worker performs those functions, that would be work that Greenacres would want them to perform?‑‑‑As part of their training, as part of their development.

PN938

Well, if Greenacres was to say to a worker, we would want you to conduct, as part of your duties, encourage other co-workers to on task behaviour and the employee agreed to perform that work, then they would fall within, at least on that criteria, wage level E?‑‑‑Yes, and we have people that we think are capable of that, they've gone through the skill levels and that's why they are at level E.

PN939

That's right, that's why they are at level E and as part of that at point 6 is you also could expect an employee to help set up a work station for team members and organise work materials?‑‑‑Okay, so that in our context is under the supervision of the supervisor, the supervisor asking that person to organise some boxes off the pallet and to take materials out of the boxes to put in front of certain employees. They're fairly simple tasks we are asking that supported employee to do.

PN940

I am not asking you about what you do at Greenacres, I am asking you about what the content of this classification system is?‑‑‑Mm.

PN941

You would agree with me that on a plain reading of this document a worker who is expected to or required to or who volunteers for work that involves help setting up work stations would be at wage level E under the Greenacres tool?‑‑‑Yes, you could read it that way.

PN942

VICE PRESIDENT HATCHER: Mr Christodoulou, just looking at this paper I am struggling to identify what is the difference between a person at level E and a person who would just be entitled to a level 2 award wage?‑‑‑Yes, and I've often struggled with that, your Honour, to be honest. I've struggled in terms of the words and to some extent that is why in my witness statement I have indicated that should the Greenacres tool continue on that we want the ability to be able to look at - not redefining but making clearer the levels because I think you can read into this more than what was intended at the time. But it certainly, in terms of those persons that we have at level E under our award that might describe themselves as a team leader, only carry out that work that I described previously to Mr Harding. I do accept that that is why, to some extent, I think re-looking at this whole issue and re-looking at the descriptors along the lines of the ABL structure may be a better way.

***�� CHRIS CHRISTODOULOU�� XXN MR HARDING

PN943

MR HARDING: So you accept would you not the Greenacres tool is not transparent?‑‑‑I'm not sure what you mean by transparent.

PN944

Well, they're your words in your statement, in your second statement you have identified a range of criteria that you say should apply in the assessment of the tools. In paragraph 12 you talk about what superior means?‑‑‑Yes.

PN945

One of the criteria is that the assessment tool is clearer, more transparent, "easier to understand and implement than our existing wage tool"?‑‑‑Yes, I think that's right. I think if you can come up with a tool that is better than ours, if it does that, absolutely, that's why I put those words in the statement Mr Harding.

PN946

So there's no downside in having the Greenacres tool removed because it doesn't meet the criteria?‑‑‑Well, there would be a downside if it was only replaced by the SWS.

PN947

On the assessment of the tool itself it doesn't meet your own standards of what constitutes superior, does it?‑‑‑Well, everything is relative, Mr Harding.

PN948

No, I have just taken you to some aspects of your own tool and them compared them to the award and what I suggest to you is that your tool allows for Greenacres to pay for work that under the award would attract a higher grade than what you pay?‑‑‑Well, Mr Harding, as I indicated before, we don't apply or we would not expect a person at level E under Greenacres, nor do we have a person at level E, would carry out supervisory duties in the nature that you have described.

PN949

VICE PRESIDENT HATCHER: Mr Harding, that might be a convenient time for a short morning adjournment.

PN950

MR HARDING: Yes.

PN951

SPEAKER: How long for, your Honour?

PN952

VICE PRESIDENT HATCHER: Fifteen minutes.

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SHORT ADJOURNMENT�� [11.47 AM]

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<CHRIS CHISTODOULOU, RECALLED�� [12.00 PM]

CROSS-EXAMINATION BY MR HARDING, CONTINUING�� [12.00 PM]

PN953

VICE PRESIDENT HATCHER: Mr Harding?

PN954

MR HARDING: Thank you, your Honour. Mr Christodoulou, we were talking, before the break, about the Greenacres system and what may be made of the descriptions that are contained in the tool book, do you remember that?‑‑‑Yes.

PN955

I think your evidence is at least Greenacres pays employees mostly those of intellectual disabilities?‑‑‑Yes.

PN956

Therefore, at least at Greenacres, you would accept that the tool operates mostly in respect of those with intellectual disabilities?‑‑‑Operates for everybody with a disability that we have agreements with.

PN957

Most of those are for those with intellectual disabilities?‑‑‑Yes.

PN958

Intellectual disabilities might affect someone's ability to read?‑‑‑Yes.

PN959

Comprehend?‑‑‑Yes.

PN960

Understand complex work arrangements?‑‑‑In the context of, say, grade 2, yes.

PN961

You would agree with me then that for the cohort of persons to whom this award would apply it is desirable to have an instrument that is simple?‑‑‑Yes.

PN962

Easy to understand?‑‑‑Yes.

PN963

And that objectively assesses their performance?‑‑‑Yes.

PN964

And it's the case, under the Greenacres tool, isn't it, Mr Christodoulou, that there is first an assessment made of where an employee's task, skills and underpinning work skills are?‑‑‑Yes.

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PN965

The kinds of things that those criteria test for are described, I think your evidence was, accurately on page 35 of the Pearson(?) report?‑‑‑Yes. They're also set out in our actual wage tool.

PN966

Yes, but that's an accurate description, on page 35?‑‑‑Yes, from my recollection when I saw them, yes.

PN967

So task skills, so we're clear, assess factors associated with an individual's capacity, if I could put it that way. Would that be an accurate way of putting it?‑‑‑To carry out the actual task.

PN968

It assesses fine motor, gross motor, spatial, planning and problem solving skills?‑‑‑Yes, but it applies to the actual work they're doing.

PN969

So you're making that assessment, initially, when someone's employed?‑‑‑Well, not necessarily in this sense when people come there'll be an initial discussion with them. Sorry, I'll go back. Some of the people that come to Greenacres have gone through what we call our Transition to Work Program, which is they're not employed at that point, they do both life skills and vocational training. As part of that we'll give them work experience and we'll support them in open employment but also give them work skills and support them in our ADE environment. Through that program we'll also be assessing their capacity to work and at what level, so that's one way in. The other way in is that people will come off the street. They'll talk to a trainer, in some cases those people that walk off the street are more elderly, in the sense that they're not students that have come out of school, like the Transition to Work Program. They'll have already had some work experience or supported employment, or they may be previous employees of Greenacres, but we will, in a sense, evaluate them as they're on the job and then assign them to an appropriate level after a period of time. So the lowest they can go in, of course, is the entry level, the level 1, under the award, which is the training and assessment level. Although, from memory, I think now we're just bringing everyone in at a level and even doing that assessment at that level, in any event.

PN970

So these are all things that you would use to determine whether someone is capable of doing your work?‑‑‑As per the tool. The trainers assess the person's capabilities as per the tool.

PN971

Yes, as per the tool. So you're making an assessment of whether these employees are capable of doing the work you wish them to perform?‑‑‑Yes.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN972

Then having made that decision that they are capable of performing the work that you wish them to perform then you employ them?‑‑‑Yes, in this sense that obviously if we don't think they can do the lowest level task that we have then obviously they may not be employable.

PN973

That's an assessment that they're not up to the work, isn't it?‑‑‑Well, yes. There are a number of people with disabilities, or their parents, that would desire for the person to have employment and we would make an assessment that, "Look, they don't have the employability skills even to do the most basic task."

PN974

Because there is always going to be some group of persons with disabilities, particularly those with intellectual disabilities, who simply can't perform the work that you need them to perform in your enterprise?‑‑‑Well, the work that we have available, yes.

PN975

Well, that's ultimately what you're employment them to perform, isn't it?‑‑‑Yes.

PN976

So in the end the assessment that Greenacres makes is that if they've employed a person is that they can do the work that you want them to perform?‑‑‑Yes.

PN977

In the process of making that assessment you do an initial assessment and then you are able to review their performance?‑‑‑Yes, we review their performance constantly.

PN978

When you do review their performance then you can coach them on whether or not there's something they could do better?‑‑‑Yes.

PN979

And if they've done something wrong it's available for you to discipline them, as an employer?‑‑‑Discipline is a bit harsh. It has to be something really bad for us to use the word "discipline". I can't remember - there's only one incident I can remember, in the last 12 months, where a discipline went to suspension. In most cases sometimes they're behavioural issues that happen on a daily basis and it's not about discipline, it's just about modifying behaviour.

PN980

Okay, modifying behaviour, but you reserve the right as an employer, ultimately, to say, "We can't have you here"?‑‑‑Yes. In circumstances where somebody might be a threat to others, or a threat to themselves, yes.

PN981

In those circumstances the employment would end, like it would for any employee?‑‑‑Yes.

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PN982

You'd accept, wouldn't you, that under the award, the way the award works, is that if the employer wishes work to be done then - and it's work within a classification then the award rate is paid, that's a general proposition?‑‑‑For employees, yes, absolutely.

PN983

Let's talk about non-disabled workers, under the award?‑‑‑Yes.

PN984

If you had grade 2 work that you wanted a non-disabled worker to perform, you would expect to pay the award rate for that worker?‑‑‑Yes. What I would do is give them the duty statement, which outlines all of their duties and I would expect them to be able to perform all of the duties that we say are available to us to give them, under grade 2.

PN985

When you say "all of the duties" and in circumstances where they don't perform the duties then you, as the employer, have a right to tell them to perform it?‑‑‑Yes.

PN986

If they don't, you have a right to dismiss them?‑‑‑Subject to whatever the provisions are in the award that gives them rights, as employees.

PN987

I accept that you would be complying with the lawful constraints on the employer's behalf, but in circumstances where you have someone who you say, "Here's the range of duties that I want you to perform", and who doesn't, you, as the employer, would expect to be able to have the right to bring their employment to an end, if they continue to fail?‑‑‑Yes, in the general sense, that's right.

PN988

It's right to say, though, for the purposes of the award, that a worker's either performing the work within a grade, or they're not performing work within a grade, that's a fair statement, isn't it?‑‑‑So we're talking about people without disabilities here?

PN989

Well, let's talk about it on that basis. If you've required someone to perform work and they're performing that work then you would expect to have to pay the award rate prescribed for that work?‑‑‑Yes.

PN990

Your remedy, in circumstances where they don't perform that work, is to bring their employment to an end?‑‑‑Yes, if they're not performing.

PN991

That's right. Now, if we go back to page 35?‑‑‑Of?

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PN992

Of the Pearson report. Would you agree with me that what (1) and (2) do is to enable the employer to assess a person's ability to perform the work they wish to be performed?‑‑‑Yes.

PN993

Akin to a duty statement, along the lines of that we've just been discussing?‑‑‑No, not necessarily. I think, this is in terms of assessing a person's capability and then seeing whether we have work that relates to that capability.

PN994

If you don't have work then you won't offer the work, if you do have the work and you assess them as able to perform it then you offer them the work?‑‑‑Yes, at the level under our - - -

PN995

At the level?‑‑‑Yes.

PN996

But the difference between the award and the Greenacres tool is that under the Greenacres tool you bring those assessments into how you classify workers under a wage level, is that a fair statement?‑‑‑Say that again?

PN997

The difference between a Greenacres tool and the award is that you bring these assessments of capability in tasks, skills and underpinning work skills, into your assessment of what you pay?‑‑‑Yes.

PN998

The award doesn't and Greenacres does, that's accurate, isn't it?‑‑‑Well, the award allows us to because the tool's referenced in the award.

PN999

Yes, that's right. But you've just agreed with me that for a non-disabled worker, if you want them to perform work, as long as they're performing the work then they're entitled to be paid the rate of pay in the award?‑‑‑Yes, according to their duty statement, yes.

PN1000

But under the Greenacres tool, if a disabled worker has, by virtue of their disability you assess their motor skills, or their vocational skills, or their teamwork skills, for instance, as being inferior, compared to another worker, then you're entitled to discount their wages, by reference to the wage level that you've put them in?‑‑‑Well, that's what the tool does, yes.

PN1001

That's what the tool does, that's right. So you accept that that effects a discrimination as between non-disabled workers and disabled workers in that situation?‑‑‑No.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1002

Doesn't your tool treat disabled workers less favourably than what the award does for non-disabled workers?‑‑‑I think - well, to be honest, I think all tools probably suffer for that, because they don't pay the full award wage.

PN1003

That's right?‑‑‑All tools don't pay the full award wage. So if they all paid the full award wage then we wouldn't be sitting here.

PN1004

There's two things, though, in that statement, they don't pay the full award wage, you'd accept that. I mean that's obvious?‑‑‑Mm.

PN1005

But your tool goes further, doesn't it? It introduces concepts into a wage assessment and where you classify someone they don't appear in the award?‑‑‑Well, no, it does appear in the award, it's referenced in the award.

PN1006

All right, don't appear in the award, in respect of non-disabled people?‑‑‑Well, yes, because the tools are all predicated on paying a percentage of the classifications in the award.

PN1007

The situation is this, isn't it, Mr Christodoulou, if a non-disabled worker turned up to Greenacres and offered their services to perform grade 2 work in your enterprise, you could make a judgment about whether or not they were up to the work and employ them or not employ them?‑‑‑Yes.

PN1008

If that worker didn't perform the work you wanted them to perform then you are entitled to instruct them to perform it, yes?‑‑‑Yes.

PN1009

And dismiss them if they don't?‑‑‑If I thought it was reasonable to do so, yes.

PN1010

In relation to the Greenacres tool, what's different is that, for instance, in the case of underpinning work skills you can make an assessment about the skills necessary to maintain successful employment in your assessment of what you pay for the work that you want done?‑‑‑Yes. At each level there's a set of underpinning work skills and dependent upon whether people fulfil that criteria at each level will determine what level they're in.

PN1011

VICE PRESIDENT HATCHER: Mr Christodoulou, is it a correct analysis to say that an ADE has a job of some nature that it wants done and then finds a disabled person to do it or is it the other way round, that is, you have a disabled person who wants to work - - -?‑‑‑It - - -

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PN1012

Let me finish, who wants to work and then you see if you can construct a job which that person is able to do?‑‑‑So in terms of Greenacres, the bulk of the work that we have is work that we've procured, in order to satisfy the capability of the workforce. In other words, there might be other things that we think that we'd like to do that might be commercially more viable, but it wouldn't - but we wouldn't have the capability of doing that because of the capacity and capability of the workforce. So the jobs we seek to procure or enterprises we seek to create are all done on the basis of trying to provide employment for people with disabilities.

PN1013

But you do that in a global way, don't you? You say you would tender for work that you wish Greenacres to perform?‑‑‑Well, we haven't gone - - -

PN1014

Or apply for work, if there's an organisation out there who wants work to be performed within the kind of parameters of work that you perform, you would apply for that work?‑‑‑Yes, if there was something out there that we thought we could do and we had the workforce capability of doing it, yes, we would - of course, we'd go and seek it.

PN1015

That's true of any employer, ultimately, isn't it, which is that any employer who wishes to have work will apply for work for which it has the workforce capability to perform?‑‑‑Well, after they've done a business case to see whether - most employers will work out whether there's a profit to be made by that. We'll normally work out whether, one, we have the skills to do that work and, two, is it commercially viable. To that extent, ours is not necessarily all about maximising profit, it's probably more about can we break even and maximise the number of employment opportunities.

PN1016

You ultimately need to break even, don't you?‑‑‑Yes, definitely.

PN1017

And you'd prefer to make a profit in the end, because that's a return on investment, isn't it?‑‑‑Yes.

PN1018

MR HARDING: I think, if I can take you to, on that subject, to the KPMG report that you've attached to your second witness statement, attachment 6?‑‑‑Yes.

PN1019

Have you got that in front of you? Yes?‑‑‑I've just got to find that, Mr Harding.

PN1020

Yes, there's a lot of material.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1021

VICE PRESIDENT HATCHER: So can we close up the analysis of sales assessment tools report?

PN1022

MR HARDING: Yes.

PN1023

VICE PRESIDENT HATCHER: Thank you.

PN1024

THE WITNESS: Yes, I've got that, Mr Harding.

PN1025

MR HARDING: This, I think in your evidence, this is a document produced at the instigation of Greenacres, by KPMG, that assesses the financial circumstances of your supported employment services, is that correct?‑‑‑Yes. Yes, we got funding to be able to do this.

PN1026

On page 12, and the page numbers are very small at the bottom, it might be 17?‑‑‑Is there a heading on top of the page, Mr - - -

PN1027

Section 3, Future Directions?‑‑‑Yes.

PN1028

There there's a SWOT analysis and then you've got a list of strengths of ADEs and weaknesses for your Greenacres enterprises, yes?‑‑‑Yes.

PN1029

One of the strengths identified by KPMG is that you have a high margin on the product of service?‑‑‑Yes, but I'm not sure how they've arrived at that, actually. I've never noticed that one dot point, I must admit.

PN1030

Well, it's in the report?‑‑‑Yes.

PN1031

No reason to doubt it?‑‑‑Our financial doubt it, but anyway that's fine.

PN1032

Well, it's a strength identified by KPMG about your business model, isn't it?‑‑‑Well, if you go to the financials you'll see that - - -

PN1033

I'm not asking you about the financials, I'm asking you about the SWOT analysis?‑‑‑That's a SWOT analysis, yes.

PN1034

And one of the strengths identified by KPMG, after analysing your enterprises is that a strength is that you have a high margin on the product and services that you sell?‑‑‑Yes. It does say "a margin", it doesn't necessarily say that that will provide a profit.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1035

Now, I think you've given some evidence about - we've had a discussion about duty statements, and I think you have given some evidence, in your first statement, that, at paragraph 32?‑‑‑Is this exhibit 4?

PN1036

No, it's your first statement, well it could be exhibit 4?‑‑‑Is it the statement dated 21 September?

PN1037

Yes, that's the one. Exhibit 4, that's right. So in paragraph 32, you say:

PN1038

All employees covered by awards of the Commission, except for people with disabilities and supported employment enterprise and those assessed have their wages determined by the employer, against the work they carry out, by reference to an award classification structure.

PN1039

And I think we agree that's the case, isn't it?‑‑‑Yes.

PN1040

You go on to say:

PN1041

Employees classified at a particular level are expected to be able to carry out all aspects of their duty statement.

PN1042

?‑‑‑Yes.

PN1043

You're referring there to the conversation that we had earlier about the difference between the work an employer has in their duty statement and what they assign a worker to do. They're not always the same, are they?‑‑‑Well, at Greenacres we don't actually provide our supported employees with a duty statement, only because it's not relevant in the sense that we couldn't give them a full duty statement because they'd be unable to carry out what we would expect.

PN1044

Okay. So the way in which work is organised at Greenacres is that you assign the work on a daily basis?‑‑‑When you say "on a daily basis", in most cases most of the supported employees, not in all cases, will go to a particular work area where we'll endeavour to get them to carry out work that they're capable of doing and work that they probably are more familiar with, but that doesn't always happen.

PN1045

All right. But you assign work to an employee but rather in a duty statement you say to an employee, "This is the work we went you to do - - -?‑‑‑Today, yes. We want you to pack cosmetics.

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PN1046

That's right. Now, I think we had a conversation about Mr Cain's statement and whether or not you'd read some of the materials that are attached to his statement, if I can show you a report, that's attachment A to his statement. This is the first statement of Mr Cain, sorry, the second statement of Mr Cain, attachment A, and this is a report, prepared by the Department of Family and Community Services, Modelling and Competency Matching, are you looking at that?‑‑‑Yes.

PN1047

This is a document prepared in 2003, and the date of that is at the bottom of that first page, June 2003?‑‑‑Yes.

PN1048

It says what it says?‑‑‑What page are you at, Mr Harding?

PN1049

Well, it first tells us that the Commonwealth is engaged in competency matching, this is on page 2?‑‑‑Is it 2 or 2.1 I'm looking at?

PN1050

Two?‑‑‑Yes.

PN1051

VICE PRESIDENT HATCHER: I've only just caught up, Mr Harding, so it's attachment A?

PN1052

MR HARDING: It is attachment A.

PN1053

VICE PRESIDENT HATCHER: What page are we on?

PN1054

MR HARDING: I was taking Mr Christodoulou to page 2 of the internal page numbers of the report itself. This tells us that:

PN1055

Competency matching was undertaken in order to align the work bank performed by workers in mainstream employment with relevant units of competency from the ANITA Framework. Job roles were reviewed, observed and the tasks matched with relevant units of competency. This task was undertaken by personnel possessing a Certificate IV in Workplace Assessment.

PN1056

Now, are you familiar with this report?‑‑‑Not at all.

PN1057

Okay. Well, on page 3, under the heading Job Description versus Job Activity?‑‑‑Yes.

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PN1058

The Commonwealth report says:

PN1059

As with most jobs, the detailed job descriptions for many of the jobs analysed in this project reflected a vast array of potential activities.

PN1060

Then they focus on - they say the tasks that were required of the work performed. That statement, in the first sentence, is an obvious statement, isn't it, Mr Christodoulou, that you have job descriptions on the one hand and then what workers might be required to perform, perhaps daily, on another?‑‑‑Yes, that's what that says.

PN1061

Yes, that's what that says. Then, in terms of the results on page 4, this is the results of the competency matching exercise for open employment and that shows that workers - this is disabled workers in open employment, that shows that:

PN1062

There's a large number of workers perform duties within the scope of four or less job specific competencies and the average number of competencies that are performed are 2.8.

PN1063

Do you see that, in the total?‑‑‑Is this under Overall Results?

PN1064

This is page 4, 2.2, Results is the heading?‑‑‑Yes. And just take me to what you've just referred to, is this in the first paragraph?

PN1065

Yes.

PN1066

The results of the competency matching exercise for open employment showed - - -

PN1067

Is what I've been looking at?‑‑‑Yes.

PN1068

We're talking here about the usual work role?‑‑‑Yes, I've seen that. Yes, I've read the first paragraph.

PN1069

Then there's a table underneath it, Overall Results?‑‑‑Yes.

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PN1070

And the average competencies performed by workers in their usual work role, according to this report, is 2.8?‑‑‑Yes.

PN1071

On page 6, under the heading part 3, Business Service Competency Matching:

PN1072

A competency matching exercise was also conducted for a sample of workers in business services.

PN1073

Now, business services is the old name for ADEs, isn't it?‑‑‑Yes.

PN1074

Then what that tells us is that the average competencies for, under the heading 3.1 Results, for these workers is that they were performing 2.38?‑‑‑Yes.

PN1075

Well, would you accept - you're not the author of the report, but would you accept that a reading of this report shows that there's not very much difference between the competencies performed by disabled workers in an open employment and those performed by disabled workers in business services, on this report?

PN1076

MR ZEVARI: Your Honour, I object. The question is posed that Mr Christodoulou answer a question as to what the report concludes. We've been taken to some very specific extracts of a document that Mr Christodoulou has said he has no familiarity with and he's being asked to answer a question about the conclusions that require a review of the entire report.

PN1077

VICE PRESIDENT HATCHER: I'll allow the question.

PN1078

THE WITNESS: Sorry, can you just repeat that, Mr Harding?

PN1079

MR HARDING: A fair reading of the report tells us, does it not, that the average competencies performed by workers in their usual role in open employment is not that much different from the competencies usually performed by employees in their usual employment in business services?‑‑‑That's what the report says.

PN1080

And you have no evidence that undermines that?‑‑‑Well, I'm not an assessor. That's what the report says.

PN1081

Yes, okay. Bear with me for a moment please. Now we've had some discussion about the if I can call it the ABI draft determination - - -

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PN1082

VICE PRESIDENT HATCHER: Can we put that report away now?

PN1083

MR HARDING: Yes.

PN1084

THE WITNESS: Thank you.

PN1085

MR HARDING: And I'm going to hand you up a copy of that draft determination, Mr Christodoulou?‑‑‑I do have a copy, Mr Harding.

PN1086

Do you?‑‑‑Yes.

PN1087

As amended?‑‑‑I think so.

PN1088

In January?‑‑‑I think so, yes.

PN1089

Does the Bench have a copy?

PN1090

VICE PRESIDENT HATCHER: Yes, somewhere, but just keep going.

PN1091

MR HARDING: Were you involved in developing this?‑‑‑Yes I had input into it. Yes.

PN1092

And so you would know, would you not, that like the Greenacres tool the intention is that it would cover work performed at grade 1 and 2?‑‑‑Yes.

PN1093

Of the award?‑‑‑I - the intention is really work performed at grade 2.

PN1094

Okay, the intention is, and so it covers the same field as the Greenacres tool in that respect?‑‑‑Yes.

PN1095

And what we have in the tool - and I'm looking at a version that has got page numbers with page 4 at the bottom right?‑‑‑Is this - are we talking about the classification?

PN1096

I'm talking now about the proposed - the draft determination?‑‑‑Yes.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1097

And if you've got it you can hook that out?‑‑‑Yes.

PN1098

COMMISSIONER CAMBRIDGE: This is the version that says 24 January 2018?

PN1099

MR HARDING: Yes.

PN1100

COMMISSIONER CAMBRIDGE: Yes.

PN1101

MR HARDING: Yes?‑‑‑Yes, sorry, what page are you up to, Mr Harding?

PN1102

Page 4?‑‑‑Yes, I have it.

PN1103

And it's headed "Rate of Pay. Weekly Ordinary Rate"?‑‑‑Yes.

PN1104

And the intention set out in the table is that a worker be classified at one of these wage levels?‑‑‑Yes.

PN1105

First by reference to a range of considerations in the Annexure A which are the classification descriptors?‑‑‑Yes.

PN1106

And that would go from 12 point - it would start at 12.5 per cent which is the training and assessment level and go all the way to a hundred per cent?‑‑‑Yes.

PN1107

But the Greenacres tool would allow for the SWS to come in at 55 per cent?‑‑‑Well, that's what the Greenacres tool does now.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1108

Are you able to explain to the Commission how one can justify a tool where you're supporting both but one has the SWS at 55 per cent but the ABI proposal has no part for the SWS to play at all?‑‑‑Because this is a new approach to wage assessment. So we have tried to start from the beginning and we have tried to develop in a sense a classification structure approach that is where employees can classify supported employees as against the criteria that is set out in each of the definitions in the structure like any other employer does with their employees without disabilities. And it's appropriate that we do that right up to the hundred per cent mark, but you will note that in the structure I think - and I haven't got - I'd have to find the provision but I think once someone gets to level D we are talking about - we're thinking at that point, we are talking about people trying to convince the people to go into open employment, because I think they'd have the skills to do that.

PN1109

Don't worry about that for a moment, Mr Christodoulou. We're only focussing on what you're proposing?‑‑‑Yes. But yes, you're right, there is - - -

PN1110

Can you agree with me that it's - - -?‑‑‑There is no work for the SWS to do in this case.

PN1111

No, and an employee under the ABI proposal at the rate of 55 per cent is worse off than it is under Greenacres?‑‑‑Sorry?

PN1112

So an employee above 55 per cent of the award rate under the ABI proposal ensures that a worker is worse off than they would be under Greenacres?‑‑‑No, I wouldn't agree with that at all because you don't know what the result of the SWS would be.

PN1113

Correct. Correct, but it could be that under the SWS a worker is assessed at 90 per cent productivity for instance?‑‑‑Yes.

PN1114

But under the ABI proposal if you're classified at level D you start at 70 per cent?‑‑‑Yes.

PN1115

A worker could have an 80 per cent output under the SWS but under the ABI proposal if you're classified at C5 you're fixed at 60 per cent unless you're reclassified?‑‑‑That's right. So you're classified into either levels A, B, C or D and within each of those levels according to this proposal as it currently stands there is a productivity measurement.

PN1116

It's the case isn't it, Mr Christodoulou, that under the award using an SWS assessment that the award takes grade 2 work and then asks an employee to perform work representative of the tasks that they'd be expected to perform and an assessment is made of their productive output?‑‑‑In terms of the SWS?

PN1117

Yes?‑‑‑Yes, you assess as against only those tasks that an employee - and you say expected to perform, can perform.

PN1118

Can perform and does perform?‑‑‑And does perform.

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PN1119

Yes, and in those circumstances their output is their output and the percentage of the award is paid accordingly?‑‑‑Yes, that's how the SWS works.

PN1120

That's right. But under the proposal that's been put by ABI you couldn't move from level C to level D for instance unless reclassified?‑‑‑Yes and if your skills improve in accordance with the classification structure you can move.

PN1121

Okay, but under the Greenacres system anyone who's assessed at beyond 55 per cent of the award has the benefit of the SWS?‑‑‑Yes, that's how it current - it's currently constructed.

PN1122

Yes?‑‑‑That's right.

PN1123

So a worker might be worse off under the ABI proposal than they would be under the Greenacres. That's fair isn't it?‑‑‑Well, they might be worse off under the SWS as well.

PN1124

Just stick with the question. A worker might be worse off under the ABI proposal when compared with Greenacres?‑‑‑Yes, you're right. It depends on what the result of the assessment is.

PN1125

Yes.

PN1126

VICE PRESIDENT HATCHER: Mr Harding, but were you putting that they would necessarily be worse off under the ABI proposal?

PN1127

MR HARDING: No, I think the question was "might be".

PN1128

Are you able to explain to the Commission why it's appropriate to have the SWS under the Greenacres system and not appropriate to have it under the system that's now being proposed, if this new system is intended to be an improvement?‑‑‑I didn't construct the Greenacres tool and I don't think - and I'm certainly not a person that believes the SWS is an appropriate way of assessing wages and therefore I think a better way is to adopt a more generalist approach where you classify people according to their skills.

PN1129

Let's talk about that then. You've got in the ABI proposal Annexure A, the classification criteria that would apply?‑‑‑Yes. Yes.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1130

And these criteria are the basis upon which someone would be allocated a classification?‑‑‑Yes.

PN1131

Would you agree with me that the question of whether someone requires high level work support or personal support has got nothing to do with skills, it has got to do with support the employee might need to perform their work?‑‑‑Yes I would agree with that.

PN1132

And the criterion of pre-set pace tells us nothing about how one should apply that, does it? That's in the eyes of the employer?‑‑‑Well, this is when - this is where you don't actually set a benchmark in the sense for the employee having to achieve to be in that level, therefore they can work at their own pace and therefore that will determine ultimately if there is to be a productivity measure as to what they might get within that skill level. But there isn't a predetermined productivity measure where it says not at a pre-set pace. I can explain that a bit further if you like, Mr Harding.

PN1133

Well, on its face what it enables an employer to do is to determine the pace at which it wants a worker to perform?‑‑‑No, it's the opposite.

PN1134

But the intention there is that you say if an employer does not set a particular pace of work then that's a factor in the criterion that you apply?‑‑‑Well, that's a factor that would apply at say, level A so - and I - and we talk from experience here. Our level A workers at Greenacres, we don't set a pace for them or a productivity outcome for them. We give them work to do. We give them support and training to carry out that work and they will carry out that work as best they can with the training and support that we give them.

PN1135

You've got a criterion in AD that the person "is incapable of organising their own work"?‑‑‑Yes.

PN1136

But at level D they are capable - this is D?‑‑‑Yes.

PN1137

"Is capable of organising their own work with the assistance of their supervisor"?‑‑‑Yes.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1138

And you say, do you, that in D that's an appropriate category of criterion to have when you're talking about worker grade 2?‑‑‑Yes, so it's relative to grade 2. So if the - if a process worker at grade 2 was able to under supervision organise their own work in the sense that they would know what work station to go to, be able to take the materials they need, carry out that work, follow basic instructions, we would say you're getting much closer to what a person without a disability could do.

PN1139

On its face what it says is that level DD, that someone is capable of organising their own work with the assistance of a supervisor. That's it?‑‑‑That's right.

PN1140

That's it?‑‑‑But that would be a - that's getting very close to a grade 2 worker.

PN1141

That's getting close to a grade 2 worker?‑‑‑Yes.

PN1142

So you say a grade 2 worker must be capable of organising their own work?‑‑‑Yes. So if we asked a grade 2 worker, and they know their daily routine is to go and take commodities off a pallet, to take those commodities over to a particular machine line, to unpack those commodities, to carry out work in terms of process work, that would be something you'd expect of a process worker following a very basic direction.

PN1143

Following a very basic direction. In A of - level DA the worker must be directly supervised?‑‑‑Yes.

PN1144

What I suggest to you is that as you get down the criteria from D onwards what is required at level D is in fact higher than what would be required for a grade 2 worker under the modern award?‑‑‑I wouldn't think so.

PN1145

No?‑‑‑Well, that's not - let me say this. That is not the intention and certainly if some interpret it that way then my view has always been, and it was my view in the conciliation, that we would talk about those issues if that was how it was interpreted because that's not what was intended.

PN1146

You've made a reference to this a number of times, about what's intended and interpretation and how things operate at Greenacres. This award will apply, this tool will apply to people with intellectual disabilities?‑‑‑Yes.

PN1147

And there is already, I suggest to you, ambiguity in the language that is utilised in this tool?‑‑‑Well, it's a classification structure.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1148

Yes, which is intended to be applied to people who may not have the same capacity to understand how these things operate as someone without a disability, or in particular an intellectual disability?‑‑‑Well, I think that same position that you adopt can be adopted for any tool. I'm not sure that people with intellectual disabilities would understand the nuances of the Supported Wage System.

PN1149

The difference isn't it - - -?‑‑‑And in terms of the Greenacres tool we do have regular meetings with either the person with the intellectual disability and/or their carer to work through where we're up to with their skill levels.

PN1150

Mr Christodoulou, isn't it the case that unlike the Supported Wage System a worker performs their work and some independent assessor determines what their productivity rate is. Yes?‑‑‑Yes.

PN1151

And that rate forms the basis of what they're paid under the award?‑‑‑Yes.

PN1152

Whereas under eth proposal submitted by ABE there are subjective elements contained in the assessment?‑‑‑Well, no, it - when employers employ people pursuant to a classification structure they've got obligations to ensure that they classify employer - employees correctly, and an employee has a right if they don't think they've been classified correctly to take some recourse and action. So therefore we say that should be the approach here.

PN1153

So is it the case that the expectation is on those with disabilities to dispute an assessment or to be assumed to be the same as those without disabilities?‑‑‑No, I think they - I think people with disabilities require an extra level of understanding and assistance and to that extent that's why we are supporting the Our Voice proposal about a rights at work clause, about education for people with disabilities, their carers and their right to have an advocate or a union advocate on their behalf.

PN1154

So the assumption that you build into this is that a person, that an employee with a disability will have an advocate or a union to assist them to explain the situation as part of a disputes process?‑‑‑Well, that would be the preferred approach.

PN1155

Okay. You can't guarantee that, can you?‑‑‑Well, no worker - well, that's right you can't guarantee that just as you can't guarantee it for any other worker in Australia.

PN1156

Yes. Now you've given some evidence, Mr Christodoulou, about the costs of the SWS?‑‑‑Can you refer me, Mr Harding?

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1157

I'm just about to refer you to some of that material. At page 36 of your first statement which is exhibit 4 you refer to an assessment done by a lead?‑‑‑What paragraph are you referring to, Mr Harding?

PN1158

Paragraph 36 of your first statement, exhibit 4?‑‑‑Yes.

PN1159

And you annexe that at attachment 5?‑‑‑Attachment F, that one?

PN1160

Attachment F, sorry, not attachment 5. Yes?‑‑‑Yes.

PN1161

And it's the case, isn't it, that you've done timings on five, or that lead did timings on five employees?‑‑‑Yes.

PN1162

And they were point in time timings?‑‑‑Yes.

PN1163

Yes?‑‑‑Yes.

PN1164

They weren't timings done under the modified SWS but under the old SWS?‑‑‑Yes, that was done under the old SWS.

PN1165

And then at the - I think it's F.1?‑‑‑Yes.

PN1166

This tells us, does it, of the comparison between the Greenacres and the timings?‑‑‑Yes, is this the table?

PN1167

Yes?‑‑‑Yes.

PN1168

And you've got 220 employees, or about that. 240 supported employees at Greenacres Enterprises. Is that - - -?‑‑‑Yes.

PN1169

And this is evidence from five of them?‑‑‑Yes.

PN1170

And it's intended to tell us what the wage difference is. Can you explain to the Commission how it can be justified that someone should be paid $8.94 under the Greenacres tool, which is the first example, and $10.72 under the SWS?‑‑‑How it can be justified?

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1171

How can we reconcile the massive difference in the minimum wage as between the Greenacres tool on the one hand and the SWS on the other?‑‑‑Because they're different ways of measuring, Mr Harding.

PN1172

The effect of the SWS - of the Greenacres tool is always to produce a lower rate than the SWS?‑‑‑No, I wouldn't agree with that at all. Indeed one of our biggest concerns is that some of our employees that do more complex work that are at our level EA, if they - or at our level E generally, if they were to go, be assessed under SWS, they would end up possibly on a lower rate but also possibly in relative terms in a much more disadvantaged position to many of our employees at say levels A and E who do very, very simple tasks.

PN1173

The second example under the Greenacres tool the worker would be paid $5.81 but under the SWS they're paid $17.97?‑‑‑Yes.

PN1174

MR WARD: Your Honour, I believe it's $17.87.

PN1175

MR HARDING: Yes, well we are talking about the minimum wage level here, aren't we, Mr Christodoulou? Minimum wages is what we're talking about?‑‑‑Yes.

PN1176

And the SWS benchmarks productive output against a non‑disabled worker performing the same work?‑‑‑No, they don't perform the same work. They perform a fraction of what you would expect a grade 2 employee - - -

PN1177

Well, I'm not talking about what's expected?‑‑‑- - - to perform. They do not have the same skills as a person without a disability and therefore cannot carry out all of the functions that you would expect of a grade 2 employee.

PN1178

Your reference to expectations is different from the circumstance in which the award operates. It operates on assigned duties, doesn't it? On work that's done?‑‑‑Well, all awards operate - they have a classification structure, you employ someone in accordance with their skills and their responsibilities and what work you expect them to carry out - - -

PN1179

No?‑‑‑- - -and you assign them to a classification structure.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1180

Is that the point of distinction? Is it your evidence that award wages are paid on the basis of what an employer expects to be done?‑‑‑The - I'm not following your - what you're trying to ask me, Mr Harding.

PN1181

Is it your evidence that award wages are paid on the basis of what an employer expects to be done?‑‑‑No the - yes, of course. If you employ - - -

PN1182

Okay?‑‑‑If you employ somebody and you expect them to carry out a set of duties, those duties - and those duties are commensurate with a particular classification under the award, you pay them as per that classification.

PN1183

And what this assessment tells us, doesn't it, the table that I've taken you to?‑‑‑Yes.

PN1184

This is F.1, is that example D?‑‑‑Yes.

PN1185

Had a hundred per cent of the productive output as a non‑disabled worker?‑‑‑Yes, at that point in time. That's right.

PN1186

Yes, a hundred per cent?‑‑‑That's right, for productive output on that one single task, not on all of the duties that one would - - -

PN1187

Well, just answer the question.

PN1188

VICE PRESIDENT HATCHER: Mr Christodoulou, on that example do you know what the task being performed was?‑‑‑I think at the time it would have been one of the packaging tasks in cosmetics but I can't be absolutely - but it would have been a level A job, which is one of our lower end tasks.

PN1189

MR HARDING: That's the task you asked and required that worker to perform?‑‑‑Well, that's the job we gave that worker to perform.

PN1190

And the worker performed it?‑‑‑Yes.

PN1191

And he was as productive as a non-disabled worker for that work that you wanted performed?‑‑‑For that one task he was capable of performing or she was capable of performing.

PN1192

He or she was capable of performing the work you wanted he or she to do at a hundred per cent of the rate that a non‑disabled worker would perform it?‑‑‑We probably wouldn't get a non-disabled worker to do that job actually.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1193

That's not the question I asked?‑‑‑But the reality is on that one task - - -

PN1194

Do you agree with the proposition?‑‑‑- - - that that one person was capable of doing, yes.

PN1195

You say capable, but you aren't able, are you, to identify precisely who the worker was or what they might have been. You just suspect it might have been - - -?‑‑‑Well, because I don't - it's not my job to identify people in this type of analysis.

PN1196

And now in your second statement, Mr Christodoulou, you give some evidence I think about - bear with me for a moment. At paragraph 21?‑‑‑This is the statement dated?

PN1197

Dated 15 November?‑‑‑I'll just find that, Mr Harding. Yes, paragraph?

PN1198

21?‑‑‑21. Yes.

PN1199

And you tell us there that:

PN1200

An increase in wages costs of 10 per cent would lead to some job losses but the 40 per cent wage increase which would accompany the introduction of the SWS would see most jobs lost.

PN1201

?‑‑‑That's right.

PN1202

You don't provide any evidence to this Commission that supports the 40 per cent, do you?‑‑‑The KP - you have a look at the KPMG report, but I can tell you from our financials that that is the case. Forty per cent - a 40 per cent increase would almost certainly - in fact I think it would certainly, subject to the board making this decision, close our Greenacres Enterprises.

PN1203

Well, that might be the case but the evidence, the proposition you've put there is that there will be a 40 per cent increase to your wage costs?‑‑‑Well, that is based on our internal analysis of how the SWS works, the work that we currently have and our knowledge of the client - or our supported employees that we support.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1204

Mr Christodoulou, the SWS works on the basis of an assessment of an individual worker, doesn't it?‑‑‑It does.

PN1205

You can't know what the productive output will be assessed until you do it?‑‑‑That's true.

PN1206

In which case - - -?‑‑‑Because we haven't assessed all of our 240 workers.

PN1207

You have no basis, no evidentiary basis to assert that there will be a 40 per cent wage increase due to the SWS?‑‑‑No, we do in this sense that we have looked at how the SWS works. We have material of our own about the capacity and capability of our clients. We observe what they do. We know what their internal productivity is. We know the type of jobs they perform and based on that those lead trials that we did, and what we'd asked my general manager to do was go back and look at similar cohorts, the position I - it was actually more than 40 per cent, Mr Harding. It was much more than 40 per cent at the time.

PN1208

It's getting bigger. Mr Christodoulou, you say you've got productivity information. That arises from the Greenacres tool?‑‑‑Yes.

PN1209

Greenacres - - -?‑‑‑But also on observations of the work that we do.

PN1210

The Greenacres tool measures productivity against a disabled worker not a non-disabled worker?‑‑‑Yes, yes, but can I say, Mr Harding, we know the capabilities of our employees.

PN1211

Yes. You don't use the SWS apart from work above 55 per cent?‑‑‑Well, we don't assess it ourselves in any event above S - above 55 per cent.

PN1212

And you also said that if the SWS becomes the only tool there will be job losses?‑‑‑Yes.

PN1213

And I think you appeared in a video for the change.org petition that you referred to in your opening?‑‑‑Yes.

PN1214

You've said in that:

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1215

If these changes referring to making the SWS the only assessment tool came in, there is no doubt in my mind that most of those in Greenacres will not have jobs.

PN1216

?‑‑‑That's right.

PN1217

And you offer no evidence at all for any of that, do you?‑‑‑Mr Harding, I'm the CEO of a company that looks at our financials. I know that our ADE currently loses $500,000 a year. It's not rocket science that at the end of the day if you do an analysis on what you understand a tool to be the outcome of in their assessment, you know your clients, I wouldn't make that statement on public - on the public record if it wasn't a true position.

PN1218

You don't have a basis for it?‑‑‑Of course I have a basis for it.

PN1219

You haven't - - -?‑‑‑I understand - - -

PN1220

- - - done the assessment?‑‑‑ - - - our business.

PN1221

VICE PRESIDENT HATCHER: Just don't talk over each other.

PN1222

THE WITNESS: I'm sorry.

PN1223

VICE PRESIDENT HATCHER: What was the question?

PN1224

MR HARDING: You don't have a basis for it because you haven't done the assessment?‑‑‑Well, Mr Harding, we have looked at other information. There was a government report in 2006 which I haven't got in front of me now. That says that the implementation of the SWS on ADEs will incur ADEs a 59 per cent increase. That's a government report. We also know the government has offered money for organisations to transition from the BISWAT to the SWS.

PN1225

Yes?‑‑‑So on their own analysis they're prepared to put over a hundred million dollars into that transition, so there must be a cost. And so there's a range of other information out there other than the intelligence we have of our business that would suggest it's going to be an enormous cost.

PN1226

VICE PRESIDENT HATCHER: Mr Harding, unless you're going to finish in the next five minutes, is this an appropriate time for the luncheon adjournment?

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1227

MR HARDING: Yes it is, your Honour.

PN1228

VICE PRESIDENT HATCHER: Yes, all right. We'll adjourn now and resume at 2 o'clock.

<THE WITNESS WITHDREW�� [1.03 PM]

LUNCHEON ADJOURNMENT�� [1.03 PM]

RESUMED�� [2.02 PM]

PN1229

VICE PRESIDENT HATCHER: Mr Harding.

PN1230

MR HARDING: Thank you, your Honour.

<CHRIS CHISTODOULOU, RECALLED�� [2.02 PM]

CROSS-EXAMINATION BY MR HARDING, CONTINUING�� [2.02 PM]

PN1231

MR HARDING: Mr Christodoulou, before lunch, you were talking about the issue of increased costs?‑‑‑Yes.

PN1232

And you referred in the course of your answer to a report prepared by KPMG for Greenacres and we've already had a conversation about that?‑‑‑Yes.

PN1233

And that's in attachment 6 to your second statement, if I could take you to that now?‑‑‑Yes.

PN1234

Have you got a copy of that?‑‑‑Yes, I have.

PN1235

And this report - and I'm going to take you to page 7, under heading: "Expenditure drivers." Now, there's some codes that are used in the table that appears, table 2. Have you got that?‑‑‑Mr Harding, I might have a slight problem in that I think the copy that I have might not be the full report. I might not and I'm sure that I haven't, actually, for some reason.

PN1236

I'm referring to - what I've been provided with is attachment 6 is a document which has got "Greenacres" on the front"?‑‑‑Yes, and - - -

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1237

It's dated March 2017?‑‑‑That's right, and does it have in yours the contents say 30 pages?

PN1238

Yes?‑‑‑And do you have 30 pages?

PN1239

29, 30 pages, yes?‑‑‑Yes, well, it seems as though in mind I don't have the full report on my copy, unfortunately, I apologise for that.

PN1240

All right, well, have you got page 7?

PN1241

VICE PRESIDENT HATCHER: Page 7 is actually the fourth page in the - --

PN1242

MR HARDING: Yes, it is, so it's - - -?‑‑‑Okay. Okay, so what does the very top of that page say?

PN1243

"Expenditure drivers."

PN1244

VICE PRESIDENT HATCHER: That's the page, Mr Christodoulou. No, Mr Christodoulou go back where the pie chart is?‑‑‑Right, okay. Sorry, yes.

PN1245

MR HARDING: Thank you, your Honour.

PN1246

It's got the heading: "Expenditure drivers"?‑‑‑Yes.

PN1247

Great, we're on the same page, literally. And then there's some codes in the table, table 2, can you see that?‑‑‑Yes, yes.

PN1248

It's got: "Wages AB, wages PWD"?‑‑‑Yes.

PN1249

And we take that to mean wages able-bodied?‑‑‑Yes.

PN1250

That refers to your non-disabled workforce?‑‑‑Yes.

PN1251

And "Wages PWD" refers to people with disabilities?‑‑‑Yes.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1252

That's your disabled workforce?‑‑‑Yes.

PN1253

And this tells us at the bottom of the table that the chart highlights that it's the able-bodied wage rate that is the major expense component comprising 40 per cent of total expenditure?‑‑‑Yes, yes.

PN1254

And we see then some numbers from 2015 through 2018/19?‑‑‑Yes.

PN1255

So I assume that the numbers representing the 2017/18 and 2018/19 are your forecasts?‑‑‑Yes, they are forecasts.

PN1256

All right. What I suggest to you, and I realise you don't have a calculator in front of you, is that your able-bodied wage rate is going to grow by 8.4 per cent and that's the difference between the numbers in 2015 and 16 and the one in 2018/19?‑‑‑I haven't got a calculator, but they do need to take into consideration the equal - our trainers are actually paid under the SCHADS Award, not the SES Award. So there are some additional increases associated with the ERO adjustments. Now, I don't know exactly what that is, Mr Harding.

PN1257

Can I suggest to you that the ways for people with disabilities is to go by half that amount on your forecast?‑‑‑Well, that would be right in the sense that their wages are under the - are assessed as against the SES Award, not the SCHADS Award.

PN1258

So your major wage risk comes from your able-bodied workforce, not your disabled workforce on your forecast, doesn't it?‑‑‑Well, certainly, that's a major cost for our ADE and, in fact, we have been trying to restructure that area and we've gone through a series of redundancies, but we've got to be really careful that we continue to be able to provide the level of support that is required for the people with disabilities that we employ.

PN1259

Again, I think under the enterprise agreement that applies to your workplace, which is Annexure 2 of your statement, that's a 2014 agreement, but it's still in force?‑‑‑Yes, it is, but we have applied the national wage increases beyond that agreement.

PN1260

Yes, okay, but under that agreement, you agreed to pay your workforce increases in 2015 at 3.2 per cent and in 2016, 3.3 per cent?‑‑‑Yes.

PN1261

Nothing further, your Honour.

***�� CHRIS CHISTODOULOU�� XXN MR HARDING

PN1262

VICE PRESIDENT HATCHER: Any re-examination?

PN1263

MR ZERVARI: I understand Mr Ball was wanting to cross-examination.

PN1264

MR BULL: Yes, I wanted to ask the witness some brief questions, Vice President.

PN1265

VICE PRESIDENT HATCHER: In relation to what?

PN1266

MR BULL: In relation to the claim by United Voice concerning superannuation.

PN1267

VICE PRESIDENT HATCHER: Right, okay, go ahead.

CROSS-EXAMINATION BY MR BULL�� [2.07 PM]

PN1268

MR BULL: Okay, Mr Christodoulou, is that the correct pronunciation?‑‑‑It'll do. It's - - -

PN1269

Can you hear me?‑‑‑Yes, I can. It's Christodoulou.

PN1270

Christodoulou. Sorry about that. Mr Christodoulou, you've been a director of - - -

PN1271

VICE PRESIDENT HATCHER: You should be part of the corporate memory, Mr Bull.

PN1272

MR BULL: Anyway, it's not a group memory, it's only my memory, I'm afraid.

PN1273

You're an experienced industrial relations practitioner, union official, and you've also been a director of various superannuation funds; is that correct?‑‑‑That is correct.

PN1274

In relation to your experience as a director of superannuation funds, could you briefly just outline to the Full Bench what that experience is?‑‑‑Well, I was a director of HESTA Superannuation Fund when it was first created. I won't go through the dates, but they're in my resume. I had a period of time when I wasn't a director but I was appointed by Unions NSW as a director on Assets Super. These are industry funds. And then that superannuation fund merged with Care Super and I'm currently an appointed director to Care Super Industry Fund.

***�� CHRIS CHISTODOULOU�� XXN MR BULL

PN1275

Now, I notice that when you were being cross-examined that you mentioned to the effect that Greenacres gets the normal funding that one would expect an ADE would get; is that correct?‑‑‑Well, yes, we receive DMI funding.

PN1276

And I also recall the phrase that you're funded on the basis that you're assumed to operate commercially and deal with wage costs and other business costs; is that correct?‑‑‑It is correct, but in our case, we do a lot of fundraising and other aspects of Greenacres help subsidise the losses we make in the enterprises.

PN1277

I suppose the point I'm making is that you're not - the funding doesn't meticulously account for every conceivable cost that Greenacres may have. Is that a correct statement?‑‑‑No, no, that's right. We have our funding from the government, but of course we try to maximise whatever commercial moneys we can get through our normal operations.

PN1278

So the funds you get, the budgeted funds you know you're going to receive every year, there's nothing exceptional or special about those fundings compared to other ADE's; is that correct?‑‑‑No, that's right.

PN1279

All right. Could you turn to your statement of 15 November last year?‑‑‑Yes.

PN1280

Now, Greenacres has a history of making enterprise agreements with its workforce?‑‑‑Yes, since I think around the year 2000.

PN1281

Could you turn to annexure 1 of your statement and specifically could you turn to - you produce a copy of the Greenacres Enterprise Collective Agreement 2014? I believe that's already in evidence?‑‑‑Yes, yes, I'm just finding it, Mr Bull.

PN1282

And perhaps if you could - sorry?‑‑‑Annexure 1?

PN1283

It's in Annexure 1, I believe. There's some other material in front of it?‑‑‑Sorry, just which statement? This is the statement dated - - -

PN1284

I withdraw that. It might be - it looks like attachment - I think it's attachment printed at - it's attachment - well, it's Attachment 2, if that makes sense.

PN1285

MR ZERVARI: It's two.

***�� CHRIS CHISTODOULOU�� XXN MR BULL

PN1286

MR BULL: Sorry?‑‑‑Yes, okay. This is the first statement, I think I filed.

PN1287

Well, you've done three?‑‑‑Yes.

PN1288

This is the second one in time, I think. Have you found it?‑‑‑No, no, no, not yet, sorry, Mr Bull.

PN1289

All right.

PN1290

VICE PRESIDENT HATCHER: It's Attachment 2 to the second statement?‑‑‑Yes. Yes, sorry, I've found it.

PN1291

MR BULL: Okay, great. And that agreement has expired but it's still current?‑‑‑That's right.

PN1292

And this agreement, most of the terms were similar to the previous agreement that it replaced?‑‑‑In the main. There were some changes that we negotiated with United Voice at the time.

PN1293

Could you go to clause 23.5?‑‑‑Yes.

PN1294

Now, that's a clause which basically says that - well, the agreement demands that for employees earning less than $450 a month that the employer will pay 9.5 per cent of the ordinary time earnings of $9.87 per week whichever is the greater. So you've in your industrial relations chosen to have $9.87 as the floor for additional superannuation or, rather, superannuation contributions below for people earning less than 450 a month; that's correct, isn't it?‑‑‑Well, for supported employees, that is correct.

PN1295

And you've received no special funding or money from the government or anyone else to do that, have you?‑‑‑No.

PN1296

So you've done it in terms of your capacity to budget and structure your business. You've made a choice or decision that it was appropriate to pay more than you had to?‑‑‑Well, yes, well, there's lots of decisions we make. Some may not always be commercially the right decisions, but in this particular case, we made a conscious decision to try to improve superannuation for supported employees.

***�� CHRIS CHISTODOULOU�� XXN MR BULL

PN1297

Could you perhaps elaborate for the benefit of the Full Bench why you thought it was a good decision to make?‑‑‑Well, it had already been a decision before I had arrived at Greenacres, but I think in general the board were of the view that supported employees should, although they are very low income earners, have the benefit of superannuation or aspects of that when they finally retire. And, therefore, had decided, I think, to continue to increase that figure. I think they probably - I think they've increased it in the past based on whatever the wage increase was that they had negotiated under the EBA.

PN1298

Are you able to give us some idea of estimate? This clause would generally affect supported employees only, is that correct?‑‑‑Yes.

PN1299

Are you able to give us an idea of what the average income of a supported employee is who works for Greenacres?‑‑‑I've got that somewhere in one of the statements actually and I would have to go and find that, Mr Bull.

PN1300

Well, is it more than 450 a month?‑‑‑Yes, the average would be more than 450 a month.

PN1301

Okay. Are you able to tell us what number of employees would be affected by - would utilise clause 23.5?‑‑‑I think in the main probably over 50 per cent, probably.

PN1302

Of those 50 per cent, they would generally be getting the 9.5 per cent of their ordinary time earnings because it would be greater than the $9.87. Is that correct?‑‑‑Yes. If they don't earn more than 450 - sorry, if they earn less than 450 a month, they would get either the greater of 9.50 per cent or $9.87. I can't really give you a lot more detail than that, Mr Bull, because I just don't have the figures in front of me in terms of how many.

PN1303

I suppose what I'm saying is if your supported employee is earning $400 a month, the greater is going to be the 9.5 per cent rather than - - -?‑‑‑That's right. They will get the $9.87 per week.

PN1304

It will be the percentage amount, won't it?‑‑‑Yes.

PN1305

Because that will be greater than the $9.87. Once again, that hasn't proved a crushing expense for your business, has it?‑‑‑Well, it is an expense, but it's not an area that we're overly concerned about by comparison with other aspects of our business that we are concerned about.

***�� CHRIS CHISTODOULOU�� XXN MR BULL

PN1306

Greenacres has chosen to depart from the award standard. Are you able to elaborate on what is the problem with the current award standard for the benefit of the Full Bench?‑‑‑Well, the award standard, as I understand it, is a flat $6. It has been like that for quite a while. As I've indicated before, at some point in time and prior to when I got there, there has obviously been a decision by Greenacres to increase superannuation at various points that go beyond that $6.

PN1307

Was that reason motivated by the fact that the public spirited or appropriate realisation of Greenacres - that if they paid the award amount, their employees effectively wouldn't have any superannuation - - -?‑‑‑Yes, yes.

PN1308

- - - when they got to their 65 or whatever. That's the principal thing that motivated this departure from the award standard?‑‑‑Yes.

PN1309

Isn't it?‑‑‑It is, because a lot of our supported employees would not have any super because that $6 would be eaten up by administration fees or insurance. More recently we have had discussions with AustralianSuper about trying to deal with that issue.

PN1310

I was going to get to that. You have been involved in the development of the Super Only product of AustralianSuper?‑‑‑Yes, we have.

PN1311

You as an employer have or are going to utilise it for your workforce. Is that correct?‑‑‑Yes. We will be one of the trial employers.

PN1312

Do you think it will work in practice?‑‑‑This really came about by a demand by some of our carers and supported employees that were concerned about the default arrangements. We had high level discussions with AustralianSuper, as we've tried to do with some other industry funds, and they had indicated that they were trying to produce a product that would not only assist supported employees but other low income earners. As a consequence, in our particular case they are trailing a product which will allow those of our supported employees with AustralianSuper to actually receive a bit of a refund on previous insurance premiums if they decide to opt out of insurance.

PN1313

That's all I wanted to ask, your Honour.

RE-EXAMINATION BY MR ZEVARI�� [2.20 PM]

***�� CHRIS CHISTODOULOU�� RXN MR ZEVARI

PN1314

MR ZEVARI: Mr Christodoulou, do you recall a question from Mr Harding about employees at Greenacres having supervisory aspects to their roles in some cases?‑‑‑Yes.

PN1315

What is the distinction at Greenacres, if there is any, between having a supervisory aspect to your role and being a "supervisor"?‑‑‑So our supervisors are paid grade 4 and higher under the award. They do a whole range of what you would traditionally have as supervisory duties. They oversee rosters, they authorise payments, they issue out invoices. There is administration associated with their work, but they also supervise the work of supported employees on the production line. That is, they will actually know what work is coming into the enterprise, they'll allocate the work to different work teams and they will work with the trainers to ascertain whether the supported employees are capable of doing particularly some of the new work, and then of course they'll get on with the job of continuing to ensure that the work is positioned and put in a place on the production line for the supported employees to carry out. That will vary from work team to work team, individual to individual.

PN1316

So they're not - - -

PN1317

MR HARDING: Don't lead.

PN1318

MR ZEVARI: I withdraw that. Are any of the supervisors, as you've just described them, supported employees themselves?‑‑‑No, no. They're our fully fledged supervisors.

PN1319

You responded to a question from Mr Harding earlier that employee classifications are based on duties. You drew a distinction between - you said they can perform, not what they're required to perform?‑‑‑Yes. So in our case with all of our supported employees, we will only give them work that they are capable of doing or often we will give them work as part of their skills development to try to train them up to another level of skill or capability.

PN1320

So do you design jobs around their competence?‑‑‑Absolutely.

PN1321

You referred, Mr Christodoulou, to a scenario where workers would come in off the street - or potential workers. Applicants would come in off the street?‑‑‑Yes.

PN1322

What would you do if you didn't have roles available at a particular time?‑‑‑Look, we don't like to turn people back and so - when you say we don't have roles, it's not a matter of not having roles. I mean, our job is to provide employment for people with disabilities and so - under the old regime we would have unfunded positions. In other words, we would take a person on. We wouldn't necessarily be funded for them and then if a person that was funded exited, they could fill that position.

***�� CHRIS CHISTODOULOU�� RXN MR ZEVARI

PN1323

One final question; a follow‑up question, Mr Christodoulou. There was a question from Mr Harding and a reference to pre-set pace. What would be a factor that might determine that a particular piece of work required a pre-set pace?‑‑‑Well, the best example of that probably is we've recently installed some new technology for a product that we make which is utilised in frozen foods. That machine - you can set that machine at a particular pace in terms of the product going through the machine onto the production line and you do need to have supported employees in that particular situation that could move, I guess, as fast as the machine. Now, we can set the pace of that machine and we do that based on the capability of the employee at the time.

PN1324

Thank you. Nothing further.

PN1325

VICE PRESIDENT HATCHER: Thank you for your evidence, Mr Christodoulou?‑‑‑Thank you.

PN1326

You can return to the bar table.

<THE WITNESS WITHDREW�� [2.25 PM]

PN1327

VICE PRESIDENT HATCHER: Mr Harding, who is next?

PN1328

MR HARDING: Mr MacFarlane. We have changed the order around, your Honour, but, you know, time requires us to call him first.

PN1329

VICE PRESIDENT HATCHER: While we're waiting, Mr Ward, have you had a chance to look at that report?

PN1330

MR WARD: I think I have. Can I just be reminded what we agreed on? Sorry.

PN1331

VICE PRESIDENT HATCHER: You were going to advise whether you had any objection to the admission of the report.

PN1332

MR WARD: Yes. Your Honour, we don't, but as I understand it Endeavour need some more time to get instructions.

PN1333

VICE PRESIDENT HATCHER: Right. We will come back to it. Mr Stroppiana, you tell us when you're ready to deal with that.

***�� CHRIS CHISTODOULOU�� RXN MR ZEVARI

PN1334

THE ASSOCIATE: Could you please state your full name and address.

PN1335

MR MACFARLANE: Robert Graham MacFarlane, (address supplied).

<ROBERT GRAHAM MACFARLANE, AFFIRMED�� [2.26 PM]

EXAMINATION-IN-CHIEF BY MR HARDING�� [2.27 PM]

PN1336

MR HARDING: Mr MacFarlane, is your name Robert MacFarlane?‑‑‑Yes.

PN1337

You've given an address of (address supplied)?‑‑‑Yes.

PN1338

Your statement refers to (post office box address supplied). Is the (street supplied) address your home address?‑‑‑Yes, it is.

PN1339

Have you prepared a statement for the purposes of this proceeding?‑‑‑I have.

PN1340

Dated 21 November 2017?‑‑‑Yes, I have.

PN1341

With a number of attachments?‑‑‑Yes, yes, I have.

PN1342

VICE PRESIDENT HATCHER: Do you have that with you, Mr MacFarlane?‑‑‑I beg your pardon?

PN1343

Do you have a copy of your statement with you?‑‑‑Yes, I do.

PN1344

MR HARDING: Perhaps if you have reference to it. Take it out. You have got the statement there. Have you read it recently?‑‑‑Yes.

PN1345

Is it true and correct?‑‑‑Yes.

PN1346

I tender that statement, your Honour.

PN1347

VICE PRESIDENT HATCHER: The statement of Robert MacFarlane, dated 21 November 2017, will be marked exhibit 9.

***�� ROBERT GRAHAM MACFARLANE�� XN MR HARDING

EXHIBIT #9 STATEMENT OF ROBERT MACFARLANE DATED 21/11/2017 PLUS ATTACHMENTS

CROSS-EXAMINATION BY MR WARD�� [2.28 PM]

PN1348

MR WARD: Mr MacFarlane, good afternoon. My name is Michael Ward. Just so you understand, I appear in these proceedings for various employer interests?‑‑‑Yes.

PN1349

Against AED Legal. So just to understand where I'm coming from?‑‑‑Yes.

PN1350

Can I just start a little bit with you - I'm just trying to understand the basis upon which you're giving evidence today. Are you holding yourself out to be an expert?‑‑‑I'm giving technical advice - well, I suppose you could say that, because I've been a supported wage assessor for 22 years. I've been interested in the whole area of wage assessment processes and tools. I was asked to give an opinion on the operation of a supported wage system both in open employment and in the ADE environments. Because of my background, to give an opinion on the proposed work value classification tool.

PN1351

You do present yourself today as an expert?

PN1352

VICE PRESIDENT HATCHER: An expert in what?

PN1353

MR WARD: I'm going to get to that, your Honour.

PN1354

VICE PRESIDENT HATCHER: I mean, I'm just saying whether he's an expert is not really a question - - -

PN1355

MR WARD: What are you presenting yourself to be an expert in?‑‑‑I'm an experienced supported wage assessor and that's the capacity in which I was asked to write a statement.

PN1356

So your expertise is in applying the SWS?‑‑‑Yes, and - well, my background is also in employment services, industrial relations, human resources, so - yes.

PN1357

We'll come to that?‑‑‑Yes.

PN1358

We'll come to that. Have you got a copy of your statement in front of you?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1359

You have in your statement - can you go to paragraph 7. You talk in paragraph 7, 7.1, 7.2 and 7.3 - have you got that in front of you?‑‑‑Yes.

PN1360

Can you just tell me what is the job that 7.1 is referring to? What did you actually go?‑‑‑In the Commonwealth Employment Service?

PN1361

Yes. What did you do?‑‑‑I assisted people find work and I was also, like, the specialist on servicing job seekers with disabilities.

PN1362

7.2, what did that job involve?‑‑‑That was working in the community residences for people with multiple disabilities, coming out of institutions, so it was doing things like independent living skills, hooking people up to community services. Yes, basically that's what it involved.

PN1363

The 7.3 job?‑‑‑7.3. Well, I worked through what's known as a DES provider - a specialist disability employment service - in a number of roles, but primarily as a job development marketing person; so going out and finding jobs, setting jobs up, setting up training. That sort of thing.

PN1364

It was your job to go out to Coles and persuade Coles to take people on with disabilities?‑‑‑Well, all sorts of employers based on my client load, the types of people that were - because it's all about tailoring employment.

PN1365

In 1995, you made a decision to become an assessor?‑‑‑Yes.

PN1366

What motivated that decision?‑‑‑Because I was interested in wage assessment tools and prior to the supported wages, all that was available - as you're probably aware - in the system was (indistinct) work exemption certificates, which I thought were totally inadequate because they were basically - this is a gentlemen's handshake for 60 per cent of people. That's how it was done. So I was interested in a more effective way of - you know, and being part of that new system, yes.

PN1367

Did you do it because you wanted to help disabled people?‑‑‑Well, it's part of the motivation.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1368

Part of the motivation. The other part was just to have - it was an interesting job?‑‑‑Well, I was interested in - more as an addition to the work that I was already doing, because in the original days of supported wages you had to be working for a disability employment service or for Commonwealth rehab. They were the only two - or a union, because there were union assessors, as well.

PN1369

You don't actually form - is it Maccass?‑‑‑Maccess.

PN1370

Maccess. You don't form Maccess until 2001?‑‑‑Yes.

PN1371

So between 1995 and 2001, how did you operator as an assessor?‑‑‑Well, I worked for an employment service and then the money that I earnt doing assessments went to that employment service.

PN1372

You were employed by somebody?‑‑‑Yes.

PN1373

Okay?‑‑‑By a disability employment service.

PN1374

In 2001, you formed Maccess?‑‑‑Yes.

PN1375

That is a company?‑‑‑I'm a sole trader.

PN1376

Sole trader. So it's just a trading name, is it?‑‑‑Yes.

PN1377

Okay. In your statement you say that as well as assessing, you do paid consultancy?‑‑‑Yes.

PN1378

That's right?‑‑‑Yes.

PN1379

Can you tell me what activities you do consultancy in?‑‑‑It has been staff training. I have run training courses for disability employment services on a range of matters.

PN1380

What sort of training do you do?‑‑‑Marketing, job development, basic industrial relations including supported wage system, disability awareness. Yes, those sorts of - - -

PN1381

It's associated with the disability sector?‑‑‑Disability employment. I marketed myself. Given my background in disability employment services, I marketed myself to run sort of practical training, but I don't do that so much any more. I have worked for - I've developed and written Internet site information for Job Access through another organisation. You know, it's all to do with disability employment access.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1382

I think your statement also indicates you've got some involvement in industrial relations?‑‑‑Yes.

PN1383

Did you ever act for people in tribunals like this?‑‑‑Once.

PN1384

Once. When was that?‑‑‑2001.

PN1385

What did you act for them in?‑‑‑I assisted an ADE developer develop an enterprise agreement that included the supported wage clause, because at that time the relevant award did not include supported wages.

PN1386

So you negotiated enterprise agreements?‑‑‑Yes.

PN1387

Just for that one person?‑‑‑In that role. Prior to that I had been a union delegate, so I had done enterprise agreements for - - -

PN1388

I won't ask you which union it was?‑‑‑Yes.

PN1389

VICE PRESIDENT HATCHER: Mr MacFarlane, just so I understand how this works, when you work as an SWS assessor you're engaged by a Commonwealth department or agency to provide an assessment to some sort of independent employer. Is that the way it works?‑‑‑Well, currently - - -

PN1390

Yes?‑‑‑Yes. Basically I'm a member - you have to be a member of the National Panel of Assessors and that's by applying through a tender process. That tender process is actually happening again, so it's current at the moment. Yes, so I contract to the Department of Social Services basically.

PN1391

They assign you work as - - -?‑‑‑Yes, they assign work and then you contact all the various parties, go and carry out the assessment, then write the reports and - - -

PN1392

Is NDIS going to change that in any way?‑‑‑The NDIS? No, no, it's not related.

PN1393

MR WARD: Your Honour has taken at least half a page of my questions out.

PN1394

I was taking you to that and you're aware of the Australian Government Disability Employment Services Supported Wage System Handbook?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1395

Can I show you a copy of it?‑‑‑Yes.

PN1396

Do you have that in front of you?‑‑‑Yes.

PN1397

Can I ask you to turn to page 34?‑‑‑Yes.

PN1398

You see there is a long list there?‑‑‑Yes. A list of providers, yes.

PN1399

On the left‑hand column down the bottom is Maccess?‑‑‑Yes, that's me.

PN1400

That identifies you as one of a number of approved providers?‑‑‑Yes.

PN1401

Do you have any knowledge of the other approved providers?‑‑‑Some of them, yes.

PN1402

Are they all sole traders like you or are some of them - - -?‑‑‑No, some are part of Disability Employment Services, like JobCo and Bendigo Access, Castle Personnel. Some are vocational rehab - private rehab providers. There are a range of - and, as you can see, there are other sole traders, as well.

PN1403

VICE PRESIDENT HATCHER: I see Mai-Wel is on the list. They also have their own assessment tool in the award. Do you know anything about that?‑‑‑I know that it's one of the tools listed in (indistinct) award, but that's as much as I know about it. I'm not familiar with it.

PN1404

MR WARD: When you get given an assessment to do - - -?‑‑‑Yes.

PN1405

I'll explain to you how I understand it and you're going to tell me where I'm wrong, if that's the best way to do it. I take it somebody doesn't ring you directly?‑‑‑No.

PN1406

They would ring the department?‑‑‑No, it's basically - allocation is all done online.

PN1407

So it's all online?‑‑‑Yes. I check a particular web site that's connected to Job Access daily and then work is assigned. You either accept it or don't accept it.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1408

So if I want an assessment done, do I go up on a job board on the web site or do I get - - -?‑‑‑As an employer and you want an assessment done - - -

PN1409

Yes?‑‑‑Yes, you can do an online application basically and then that's approved by a section within the Department of Social Services. Yes, then the system allocates to all these providers Australia wide.

PN1410

The computer system allocates it?‑‑‑As far as I know, or it can - and it can be overridden.

PN1411

Okay. Is it allocated geographically?‑‑‑What do you mean, graphically?

PN1412

Geographically?‑‑‑Geographic?

PN1413

So, for instance, does Maccess only operate in certain parts of Australia?‑‑‑Yes. As part of the agreement I have with the department and as part of the tender process, you say which - ESAs, they're called - employment service areas that you want to operate in. So I operate metropolitan Melbourne, Latrobe Valley and Geelong. There are nine ESAs in metropolitan Melbourne.

PN1414

Do you have exclusive rights to those areas or do you share them?‑‑‑No, they're shared. No one has exclusive rights. The department doesn't guarantee you a certain amount of work. You get what you're given.

PN1415

So you might not be given any work one month and lots - - -?‑‑‑No, normally there is allocation every month.

PN1416

You say in your statement you have done 15 hundred assessments or thereabouts?‑‑‑Roughly, yes.

PN1417

Roughly. Over a 22‑year career?‑‑‑Over 22 years as an assessor, yes.

PN1418

Yes. Do you roughly average the same number of assessments every year?‑‑‑More so in recent years, since I've been - that's all - I did less in the 10 years that I was working as a DES.

PN1419

So how many do you average now a year?‑‑‑Probably about 80 or 100, I think.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1420

How many of those would be in open employment?‑‑‑It's hard to tell, because it varies.

PN1421

You don't know?‑‑‑I haven't sat down and done a calculation, but I can tell you that this week I've got five in an ADE - with an ADE.

PN1422

Do you know how many you do in open employment out of 100 in a year?‑‑‑Probably maybe 70.

PN1423

70?‑‑‑70 to 80.

PN1424

So 70, 80 per cent?‑‑‑Yes, probably.

PN1425

Okay. That's fine?‑‑‑Roughly. I can't be exact.

PN1426

In terms of your income, is most of your income derived from doing assessments or consultancy work?‑‑‑Not from - well, I also do - when you do supported wage assessments, you also do these other things called ongoing support assessments. I do a lot more of them than I do supported wage assessments.

PN1427

I'll come to those?‑‑‑So, no, I have other - I've got other financial ways of earning an income, as well. Some comes from assessments, some comes from consultancy, some comes from other business interests that I have.

PN1428

So you have got other business interests, as well?‑‑‑Yes.

PN1429

You're working full‑time?‑‑‑No.

PN1430

You only work part‑time?‑‑‑Yes.

PN1431

How many hours a week?‑‑‑It really varies. Some weeks I might do 30 hours, some weeks I might do 20, some weeks I might do - in the last two years I've worked eight months out of the 12. I'm on what I call my slow path to retirement.

PN1432

I wish you well with that. Are you familiar with a publication called the Disability Employment Services National Panel of Assessors: Industry Information Paper?‑‑‑Can you say that again.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1433

The Disability Employment Services National Panel of Assessors: Industry Information Paper. Can I show you a copy?‑‑‑Yes, if you show me a copy then maybe I am aware.

PN1434

Sorry, your Honour, could I seek to have the Supported Wage System Handbook marked?

PN1435

VICE PRESIDENT HATCHER: Any objection, Mr Harding?

PN1436

MR HARDING: No.

PN1437

VICE PRESIDENT HATCHER: The document entitled "Disability Employment Services Supported Wage System Handbook July 2017", will marked exhibit 10.

EXHIBIT #10 DISABILITY EMPLOYMENT SERVICES SUPPORTED WAGE SYSTEM HANDBOOK JULY 2017

PN1438

MR WARD: Have you seen that before, Mr MacFarlane?‑‑‑I'm just having a look at it. This is for the latest - yes, this is for the latest tender. I didn't know it by that title. Yes, I'm - - -

PN1439

It's not a trick question, Mr MacFarlane. Can I ask you to go to page 6?‑‑‑Yes.

PN1440

It has got a scale of fees there?‑‑‑Scale of fees, yes.

PN1441

It says, "Supported wage system assessment fee - $600." Am I right in saying that's the fee for the first assessment?‑‑‑All assessments.

PN1442

All assessments. You have to do a refresher assessment every year. Am I right in saying that?‑‑‑At the moment, yes.

PN1443

Yes?‑‑‑But if the modified clause comes into effect, then - - -

PN1444

Is that a 600‑dollar fee for the refresher, as well?‑‑‑Yes.

PN1445

Okay. What is the fee for the ongoing support assessment fee?‑‑‑420 per assessment.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1446

Yes, but actually is ongoing support assessment?‑‑‑What is it?

PN1447

Basically it's - when a client of the Disability Employment Service has been receiving a service and in employment for 52 weeks, or 26 weeks if they have come aboard through a process called Job In Jeopardy, then the DSS appoint an assessor to basically � I have to � we recommend a level of funding for ongoing support in the next 12 to 18 months. So by talking to the employee, the employment consultant at the DES provider and in some cases the employer, and then you make � you write a report and you recommend a level of funding.

PN1448

When you said you do 80 to 100 assessments those are the supported wage system assessments?‑‑‑Yes.

PN1449

You do ongoing support assessment as well?‑‑‑Yes.

PN1450

How many of those a year do you do?‑‑‑I have no � well, I can tell you in the current financial year I've done 45.

PN1451

That'll do?‑‑‑So, you know ‑ ‑ ‑

PN1452

Thank you for that. I'm right in saying that ongoing support assessments are only in open employment?‑‑‑Yes.

PN1453

Yes. Have you ever been actually employed by an ADE? Have you been their employee?‑‑‑No.

PN1454

No?‑‑‑I've been a subcontractor.

PN1455

No. But you've never been employed by one?‑‑‑Pardon?

PN1456

You've never been ‑ ‑ ‑?‑‑‑Never been directly employed by one, no.

PN1457

No. No. Have you ever been trained in the use of one of the ADE tools other than SWS?‑‑‑No.

PN1458

No, okay?‑‑‑Although I'm familiar with a couple.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1459

But you haven't been trained in them?‑‑‑No.

PN1460

No. Can I ask you to go to your statement?‑‑‑My statement?

PN1461

Sorry, your Honour, I've done it again. Can I ask to have the Disability Employment Services National Panel of Assessors Industry Information paper marked?

PN1462

VICE PRESIDENT HATCHER: Yes. So the document headed Disability Employment Services National Panel of Assessors Industry Information paper dated August 2017 will be exhibit 11.

EXHIBIT #11 DISABILITY EMPLOYMENT SERVICES NATIONAL PANEL OF ASSESSORS INDUSTRY INFORMATION PAPER DATED AUGUST 2017

PN1463

MR WARD: Mr MacFarlane, can you go to paragraph 40 for me?‑‑‑Forty?

PN1464

Yes, 4-0. Have you got that?‑‑‑Yes.

PN1465

I'm just going to read the first sentence:

PN1466

Some employers have gone down the job creation path on their own initiative motivated by ideas of social responsibility without the prodding of DES provider business development marketing staff.

PN1467

?‑‑‑Yes.

PN1468

I wanted to just focus on the phrase "social responsibility". When you use that phrase are you talking about companies having corporate social responsibility programs?‑‑‑Well, they mightn't have a particular program, but they might be motivated by ideas of giving someone a go, yes.

PN1469

In your experience are those things morally motivated or financially motivated? If you don't know, sir, you don't have to answer?‑‑‑Well, yes, well, I don't really know.

PN1470

Okay?‑‑‑Every employer has different motivations for what they do.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1471

But when you actually meet some companies they talk about taking people on with disabilities for reasons of social responsibility?‑‑‑Yes.

PN1472

Yes, okay. Then you use the phrase "prodding"?‑‑‑Well ‑ ‑ ‑

PN1473

Help me out. Obviously you don't prod with a stick. What do you mean by prodding?‑‑‑Well, look, I could � well, you're trying to convince an employer to give someone a go; someone with a more significant disability who is only going to be employable using supported wages, so you are trying to convince them to � and I suppose that � I suppose because the � in my experience the majority of supported wage jobs in open employment are usually instigated by staff from a disability employment service, but there are a percentage of employers who had somehow found about the scheme and employed under their own initiative, whether that's because they have someone with a disability in their family and they want to give someone a go or because they've got ideas of social/corporate responsibility. You know, there's lots of motivation for those sorts of employees.

PN1474

So back when you were in a DES role ‑ ‑ ‑?‑‑‑Yes.

PN1475

‑ ‑ ‑you had your territory ‑ ‑ ‑?‑‑‑Yes.

PN1476

‑ ‑ ‑and you'd be trying to convince somebody to take somebody on with a disability?‑‑‑Yes.

PN1477

Yes, okay. Can you go to paragraph 30 of your statement?‑‑‑Thirty?

PN1478

I think you give us an example in paragraph 30 of exactly that?‑‑‑Yes.

PN1479

Paragraph 30 ‑ ‑ ‑?‑‑‑Yes. Yes.

PN1480

‑ ‑ ‑says:

PN1481

One of the first redesigned positions I sourced was for a young man with Downs Syndrome quite significantly cognitively impaired with limited initiative, problem solving skills and basic � often difficult to understand verbal language. A local KFC franchisee was convinced to create a largely back office position �

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1482

Et cetera. When you say convinced, is that the prodding thing you were doing?‑‑‑Well, yes you're trying to ‑ ‑ ‑

PN1483

You talk them ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑get a job for someone.

PN1484

‑ ‑ ‑into ‑ ‑ ‑?‑‑‑And, so, yes. Well, no, well, I think in this case he actually rang us and then ‑ ‑ ‑

PN1485

He being who?‑‑‑The franchisee. If my memory serves me correct the franchisee rang and said, "I want to employ someone with cerebral palsy and I said, "Well, I don't have anyone who wants to do that work, but I have this particular individual", and then I put them together and we created a job.

PN1486

VICE PRESIDENT HATCHER: When you say you have them, was this is one of your former employment capacities, was it or ‑ ‑ ‑?‑‑‑Well, yes, I � this was when I was working for a disability employment service and my job was job development marketing, getting jobs for people.

PN1487

So if you look at that example ‑ ‑ ‑?‑‑‑Yes.

PN1488

‑ ‑ ‑how would you apply SWS to assess that person?‑‑‑How would you apply? Well, you analyse the job. Well, the job had sort of three components and we set benchmarks for those three tasks by, you know, observing someone on a full wage doing the same, and then you do a series of timings and you weight each timing depending on how much time the person spends on each of the three tasks, and then you come up with a productivity rate basically.

PN1489

So that just looks at the duties of the, as it were, the carved out job?‑‑‑Well, the process of doing a supported wage assessment is always about negotiating a methodology that all parties are happy with. So in this case there were three main tasks, so they were the ones that we agreed to assess. So � and then you work out a benchmark that's suitable and then you assess the person.

PN1490

That's even though, at least the way you've described it, that the franchisee would never have offered a position of that nature to a non-disabled person, that is it was a job designed ‑ ‑ ‑?‑‑‑Yes. It was designed for a particular individual. So the supported wages really is a measure of, you know, it's designed to assess actual jobs. You know, once someone has been trained and the job has been designed and any reasonable adjustments put in place that still indicates that the person has a productivity shortfall and then you go ahead and do the assessment. Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1491

How do you negotiate what the productivity target or norm would be for a non-disabled person for this? That's something you'd negotiate with the employer, is it?‑‑‑Well, the most common way of doing it � most employers don't have benchmarks. You know, some supermarkets might have benchmarks for how many cartons to put on the � the most common way is that you time � you agree on the unit of measurement and then you time a co-worker who's on a full wage doing exactly the same task to set up a benchmark, and it's a transparent process and then the employer will agree with that benchmark and then that's what you use.

PN1492

On Tuesday of this week the Full Bench inspected some ADEs and at one of them, at a place which does cutlery for airlines we saw one employee who was given simply the task of sorting, I think it's, knives, forks and spoons from an old bucket into three different buckets?‑‑‑Yes.

PN1493

We were told in effect that was the only duty they could find that he was capable of doing?‑‑‑Yes.

PN1494

If you had to apply SWS to that, so he's just got that one task, how would you go about that?‑‑‑Well, again, you'd be negotiating with the employer and you'd be trying to set up, well, what's a reasonable unit of measurement? In this case, it might be, you know, it might be how many items are sorted in a time period, and you do that by agreement on the number, so I can't � you know, that's something you'd negotiate with the employer.

PN1495

Yes?‑‑‑Or you could do it time, you know, how many, or how long it takes to sort 100. So it's a matter of � that's what you negotiate with the employer.

PN1496

So theoretically if that example employee could do that simple task as fast as a non-disabled person he would get 100 per cent of the relevant award rate?‑‑‑Well, in theory, yes.

PN1497

Thank you?‑‑‑But in my � can I add something to that?

PN1498

Yes?‑‑‑In my experience of doing assessments in ADEs people with significant disabilities tend to have low productivity and those with less significant disabilities doing more complex jobs tend to have higher levels of � you know, so but in that case if someone is doing that job at the same rate as someone on a full wage, well, I don't see why they shouldn't paid a full wage.

PN1499

Thank you.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1500

MR WARD: Can I just take you back to KFC for a moment. I take it that the job you negotiated with KFC for the young man with Downs Syndrome, that job didn't exist before you negotiated it?‑‑‑No.

PN1501

No. I don't know if you're aware of this but I take it that KFC just employed him as an extra person. Nobody else lost their job or ‑ ‑ ‑?‑‑‑I � no. Yes, they just took him as an extra person.

PN1502

Took him on?‑‑‑As far as I'm aware. This is a long time ago.

PN1503

Yes?‑‑‑You're talking over 20 years ago.

PN1504

That's fine. That's fine. Can I take you to paragraph 31? You say in 31 there's another example of where you'd convinced somebody to do this?‑‑‑Yes.

PN1505

This is a Spotlight store where:

PN1506

I convinced the manager to create three part-time store tidying positions and job candidates who I knew wanted to work.

PN1507

Was that you meeting the store or did the store person call you in?‑‑‑No, no, I'd cold canvassed.

PN1508

Cold canvassed there?‑‑‑Basically on the basis that I had a number of clients with cognitive impairment who wanted to do retail work I targeted certain employers.

PN1509

You convinced this person to take them. How did you convince this person?‑‑‑Well, I talked to them about � because often what I do is I'd walk around a work site and think, "Oh, well, are there jobs that could be � simpler jobs that could be done?" So that's what I did and I observed that, okay, you go into a Spotlight and it's total chaos. It's just mess everywhere, and so I just put it to them, "Wouldn't it be, you know, useful to have people, you know, dedicated to keeping the store tidy. That would, you know, it would improve the appearance of the place, people would be able to find things better, more experienced staff would be able to, you know, concentrate on more complex retail tasks", and in the end the person saw the logic of my argument and agreed.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1510

So as far as you're aware having employed those people they were just extra staff, extra costs?‑‑‑I wasn't aware of their budget. That's not � I didn't get into talking about their budgeting.

PN1511

At paragraph 32 you talk about Woolworths and Coles?‑‑‑Yes.

PN1512

But you don't talk there about having to convince anybody?‑‑‑Beg your pardon?

PN1513

You don't talk there about having to convince them. Are you talking about your personal experience or just something you'd heard about?‑‑‑No, Coles and Woolworths have deals with larger disability � the government funded group called the National Recruitment Coordinator.

PN1514

But have you personally been involved in that?‑‑‑No.

PN1515

No?‑‑‑But in previous � in my previous role finding jobs for people I did go and talk to local store managers and find jobs.

PN1516

But in terms of the roles that you've described in paragraph 32 were you personally involved in the ‑ ‑ ‑?‑‑‑Are you talking about the enclave?

PN1517

Yes?‑‑‑No, I've done assessments of the individuals, but ‑ ‑ ‑

PN1518

So your involvement wasn't about setting up the enclave ‑ ‑ ‑?‑‑‑No, no.

PN1519

‑ ‑ ‑it was doing that assessment?‑‑‑No, that was another DES provider that � St John of God basically, yes.

PN1520

Mr MacFarlane just bear with me?‑‑‑Yes.

PN1521

Your involvement was doing their assessments, was it?‑‑‑Yes.

PN1522

His Honour has asked you some questions about SWS. Can I have a crack at this, because I really want to try and understand it as well?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1523

Can we just take that enclave as an example and I think it says here that they predominantly were tidying stock on shelves throughout the supermarket?‑‑‑Yes, they call it facing up.

PN1524

I presume that those jobs again were negotiated, those roles were negotiated with Coles and Woolworths?‑‑‑Some were negotiated at a local level; some I think at national office level they've made a decision as part of their equal opportunity policy to create openings for people with more significant disabilities and this was one of the ways of doing it by ‑ ‑ ‑

PN1525

Let's concentrate on � you call it facing up?‑‑‑Facing up, yes.

PN1526

Let's concentrate of facing up, and I'm going to give you a series of examples. I just want to understand based on those examples how you think the SWS operated. Let's say I've got Bob, who is a retail worker at a Coles shop without a disability, and I've got John who is one of these enclaves who is with a disability. My first query is this: let's say that when you look at Bob's job he only spends five per cent of his time involved in facing up?‑‑‑Mm.

PN1527

Am I right in saying that the most a person with a disability can earn is five per cent of Bob's wage?‑‑‑No.

PN1528

So even though I'm only ever doing five per cent of Bob's job I can earn more than that?‑‑‑Yes, well, they've created a position which is � falls in usually a grade 2 of the relevant enterprise agreement, so that's � so the assessment is based on the grade that the job appears in.

PN1529

Bear with me?‑‑‑Yes. So I don't ‑ ‑ ‑

PN1530

The first proposition is the person facing up is only doing a portion of the job a person without a disability is doing, and you say that's just a negotiation; that we create that job?‑‑‑Yes.

PN1531

Yes. That's fine. That's fine?‑‑‑But there's also staff without disabilities doing face up.

PN1532

No, but let me ask the questions?‑‑‑On a full-time basis.

PN1533

It's going to get late otherwise, Mr MacFarlane?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1534

So I'm doing that job. I'm facing up, right. I assume that the next thing you would do as an assessor is create a standard which is both quality and output for facing up?‑‑‑Yes. Yes.

PN1535

I'm not sure how you do that but you might say to Bob, who doesn't have a disability, "Go and face up this aisle and we'll see how fast it takes you to face the aisle"?‑‑‑Well, it's not just how fast. It has to be done properly to certain agreed standards.

PN1536

Yes. If those standards aren't met we'll discount that or we' won't take that one in, and Bob comes back and he can do that aisle in 10 minutes, and you would call that the standard at the quality that the company wants?‑‑‑Yes.

PN1537

Yes. Yes, good. Then I would ask the person with the disability to do the same thing, and let's say it took them, let's be generous, let's say he did it faster?‑‑‑Unlikely.

PN1538

Trust me, I've got an employee with Asperger's, sir, and he can do a lot of things faster than me I can assure you. That might be a criticism of me, but I can assure you he does things faster than me. Let's say he does it faster, would he get paid more than the person without a disability?‑‑‑No. But if - I've done assessments where people have come out 100 per cent or more and then you just basically say to the employer, "Well, you're going to have to pay them full wage. Sorry, the supported wage does not apply".

PN1539

But even if he's far more productive he just gets the full wage?‑‑‑Yes.

PN1540

If he's less productive he gets a proportional amount?‑‑‑A percentage, yes.

PN1541

Yes?‑‑‑Pro-rata.

PN1542

You think that's a fair way of working out wages?‑‑‑Well, you're also looking at the quality of the work. It's not just a speed test.

PN1543

Let's assume the quality is acceptable ‑ ‑ ‑?‑‑‑Yes. Yes.

PN1544

‑ ‑ ‑you think that's a fair way?‑‑‑Well, yes, I do.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1545

Do you think it's a way for all employees whether or not they've got a disability or not?‑‑‑Well, I think that's irrelevant. The supported wage is not designed for all employees. Supported wage is designed for people with significant disabilities who can't work at an award rate of performance, so of course it's not relevant to workers ‑ ‑ ‑

PN1546

We just discriminate against with people with disabilities and make them have their wages assessed that way?‑‑‑Well, it's only a minority of people with disabilities that are employed. If you look at the statistics the last financial year there was 6577 supported wage assessments in Australia, so you're talking about a small minority of people with disabilities.

PN1547

You think for people without a disability they shouldn't be assessed on output and people with a disability should be assessed on output?‑‑‑But it's not just output.

PN1548

Quality and output, sir?‑‑‑Yes.

PN1549

That's what you think?‑‑‑Yes.

PN1550

Yes.

PN1551

VICE PRESIDENT HATCHER: Did you just say there was 6577 SWS assessments last year?‑‑‑In the 2016/17 financial year.

PN1552

Thank you?‑‑‑Yes.

PN1553

So, Mr MacFarlane, can I just go back to my example with the forks, knives and spoons. You have that task and even though the task has been assigned to the person because it's all they could do you'd assess that against the productivity of a non-disabled person and you'd give them the percentage; is that right?‑‑‑Could you repeat that?

PN1554

Yes. Of that particular task I described you said that you'd assess the productivity of that person against a non-disabled person doing the same task and you ‑ ‑ ‑?‑‑‑Well, it doesn't � it's someone � it could be anyone who's performing at an acceptable standard to be paid an award wage.

PN1555

Right?‑‑‑So it could be someone with a disability or someone without, yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1556

I think you agreed that if a disabled person could achieve the same productivity on that simple task as the benchmark ‑ ‑ ‑?‑‑‑Yes.

PN1557

‑ ‑ ‑they should get 100 per cent of the award wage?‑‑‑Well, I believe so, yes.

PN1558

What if you have a disabled person doing a much more complex task, say, something involving operating a sewing machine ‑ ‑ ‑?‑‑‑Mm.

PN1559

‑ ‑ ‑and they're operating at 50 per cent of the productivity of the benchmark established by a non-disabled person?‑‑‑Yes.

PN1560

They, in that circumstance, get 50 per cent of the award wage?‑‑‑Yes, if that's the only task they're doing ‑ ‑ ‑

PN1561

Yes?‑‑‑ ‑ ‑ ‑ then that's what they're assessed on.

PN1562

Even though the task that person may be doing may be much more complex than the first example?‑‑‑But I would imagine it's at a higher � it'd be - operating a sewing machine would be at a higher level of grade in the award, so ‑ ‑ ‑

PN1563

Maybe?‑‑‑Yes.

PN1564

But even with the huge difference in percentages ‑ ‑ ‑?‑‑‑Yes.

PN1565

‑ ‑ ‑ they still might end up earning less doing a much more complex task?‑‑‑Yes. Yes.

PN1566

Thank you.

PN1567

MR WARD: I'll take you to paragraph 53. In paragraph 53 you say this, you're talking here about the assessments but you say:

PN1568

Similarly in a production line environment there are ways to ensure a fair and accurate assessment methodology. Often an automated conveyor style production line is set at the speed of the slowest operative and if that is the case then the SWS benchmarks established with the full wage comparator should for fairness sake be set with the conveyor operating at the same speed.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1569

You've seen that?‑‑‑Yes.

PN1570

Yes, okay. Can I just � I want to understand how that works. Let's say that I'm the person without a disability and I can operate the conveyor with speed 10?‑‑‑You're working out how to � yes.

PN1571

If I was - let's say I'm working on a conveyor?‑‑‑You can keep up with speeds, yes.

PN1572

Yes. Crank her up?‑‑‑Yes.

PN1573

I'll give it a go, speed 10, off we go, and Sina here has a disability and Sina comes along and says, "Well, I can't even try that, you're going to have to put it down to speed 2, so it's slow enough so I can actually do the job". So are you saying that when we do the SWS assessment you would slow the line down to 2 and then you would do the assessment between me without a disability and Sina with a disability?‑‑‑Well, that's something I'd negotiate with the employer, yes.

PN1574

So it's an entirely artificial understanding of output?‑‑‑I'm not sure what you mean by artificial.

PN1575

I ‑ ‑ ‑?‑‑‑It's called reasonable adjustments.

PN1576

You call that a reasonable adjustment, do you?‑‑‑Yes. Well, in that circumstance.

PN1577

You think that's a reasonable adjustment?‑‑‑Well, if it's something that the employer is happy to do.

PN1578

That's different. So you negotiate these � with these people?‑‑‑Yes.

PN1579

So you have to negotiate down an arrangement to do the SWS?‑‑‑We negotiate the methodology that all parties agree on. That's what it's about.

PN1580

There's always that negotiation before every assessment?‑‑‑Usually, yes.

PN1581

I take if you can't agree on the negotiation they probably don't employ the person?‑‑‑I've never had that experience.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1582

No. It's because you're a persuasive individual?‑‑‑Possibly.

PN1583

Yes?‑‑‑I don't know. I can't answer that.

PN1584

Can I take you to paragraph 19? You say in paragraph 19:

PN1585

There has always been a significant minority of ADEs that have embraced the SWS.

PN1586

Is that based on some government study?‑‑‑That's based on the stats that I quote lower down.

PN1587

So that's ‑ ‑ ‑?‑‑‑Taken from the Australian Government Disability Services Census.

PN1588

Have you got that in front of you?‑‑‑No, I haven't.

PN1589

All right?‑‑‑But you can google it.

PN1590

No, no, is ‑ ‑ ‑?‑‑‑That's where I got the information from.

PN1591

That wasn't what I meant, sir. It's all right. Are you referring to attachment C to your statement?‑‑‑No, you asked me how I worked out there was a significant minority. I'm saying it's based on a figure from the Australian Government Disability Service Census 2008/9 that said that 12 per cent of supported employees had been assessed in that financial year under the supported wage.

PN1592

That's fine?‑‑‑That's 2227 individuals.

PN1593

Obviously this is your statement, isn't it?‑‑‑Yes.

PN1594

Yes. Do you see at the end of that sentence it says attachment C?‑‑‑Attachment?

PN1595

Mine says attachment C?‑‑‑Well, mine ‑ ‑ ‑

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1596

Does yours say that?‑‑‑No, I don't ‑ ‑ ‑

PN1597

Let me read to you what my version of your statement says:

PN1598

VICE PRESIDENT HATCHER: So do you even have the attachments with you? Because the version we have seems to actually attach the source document for the figures?‑‑‑No, I don't have it with me, sorry.

PN1599

MR WARD: But, sorry, does your statement ‑ ‑ ‑

PN1600

VICE PRESIDENT HATCHER: Just hold on.

PN1601

MR WARD: Sorry.

PN1602

VICE PRESIDENT HATCHER: Mr Harding, do you have a copy of the full statement you can give to the witness?

PN1603

MR HARDING: Yes, we do.

PN1604

MR WARD: So, Mr MacFarlane, can I just ask you a question about your statement first?‑‑‑Yes.

PN1605

Just to make sure we're on the same page. Does your paragraph 19 finish with the words in bold, attachment C?‑‑‑No, but mine's � no, it doesn't. But this is the right attachment.

PN1606

Sorry, sir, is that because you've got in front of you a draft of your statement rather than a finished signed version?‑‑‑Well, it's just one I printed off my own computer, yes.

PN1607

That's fine. Did you see the finished version of your statement, sir, before it was filed?‑‑‑Well, I knew what the attachments were.

PN1608

But your statement doesn't have the words attachment C in it?‑‑‑But I can't see that that's � this is the attachment.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1609

No, I'm just asking a question, sir. Does your statement have the words attachment ‑ ‑ ‑?‑‑‑Not the one I have in front of me, no.

PN1610

Are there any other words missing as far as you're aware?‑‑‑No.

PN1611

Have you got attachment C in front of you now?‑‑‑Yes.

PN1612

So what I've got, and tell me if you've got it, is a document with Australian Government Disability Services Census 2008?‑‑‑Yes.

PN1613

When you say you googled this ‑ ‑ ‑?‑‑‑Yes.

PN1614

‑ ‑ ‑you were just looking for it or ‑ ‑ ‑?‑‑‑I was looking for the most recent census.

PN1615

This is ‑ ‑ ‑?‑‑‑I was trying to find, because I knew there was an earlier one that said 10 per cent, and I was just doing research trying to find � because the department don't release public figures on percentages of supported wage assessments.

PN1616

So in preparing ‑ ‑ ‑?‑‑‑So I was doing a bit of research.

PN1617

‑ ‑ ‑your statement you did some research and you found this?‑‑‑Yes.

PN1618

It's from 30 June 2008; is that correct?‑‑‑Yes.

PN1619

Can you go to the table, table 4.26?‑‑‑Yes.

PN1620

Am I right in saying that the reference to consumers and the total there for consumers is 18,555 ‑ ‑ ‑?‑‑‑Yes.

PN1621

‑ ‑ ‑is that saying there are 18,555 people with a disability that it's looking at?‑‑‑They're ADE employees.

PN1622

So there are, according to this study in 2008 18,555 people employed by ADE for the disability?‑‑‑Well, that's my understanding, yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1623

You can only offer me your understanding, sir?‑‑‑Mm.

PN1624

As I understand it, four down it says:

PN1625

Supported wage system productivity based wage 12 per cent.

PN1626

?‑‑‑Yes.

PN1627

You're telling us that that tells us that 12 per cent of people with disabilities in an ADE in 2008 is the SWS?‑‑‑Well, that's my interpretation of this document, yes.

PN1628

That's fine. That's got nothing to do with open employment?‑‑‑No.

PN1629

No, okay.

PN1630

VICE PRESIDENT HATCHER: So in that table what category do people who use different assessment tools, where do they fit in? I know it's 10 years old, so ‑ ‑ ‑?‑‑‑Well, I'd imagine the remainder assessed under other wage assessment tools. You know, I don't have the correct answer to that.

PN1631

Right?‑‑‑But I'm just assuming.

PN1632

MR WARD: Can I take you to paragraph 45?

PN1633

VICE PRESIDENT HATCHER: Which paragraph?

PN1634

MR WARD: Forty-five. You make a reference there to Mambourin Enterprises, you do assessments for them?‑‑‑Yes.

PN1635

Do you do any consultancy work for them?‑‑‑No.

PN1636

How many disabled employees do they have?‑‑‑About 120, I think.

PN1637

Sorry?‑‑‑Don't quote me, but maybe 120-odd.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1638

Paragraph 47, Clean Force?‑‑‑Yes.

PN1639

You do assessments for them?‑‑‑Yes.

PN1640

Do you do any consultancy work for them?‑‑‑Once, many years ago, when they first set up, the example of the enterprise agreement that I told you about.

PN1641

That was for them, was it?‑‑‑Yes.

PN1642

So you've got a close relationship with them?‑‑‑I have a close relationship with all the ADEs I work with.

PN1643

I'm sure you do, sir. Paragraph 48, Wesley Fire & Clay?‑‑‑Yes.

PN1644

Do you do any consultancy work for them?‑‑‑Never.

PN1645

Sorry, just bear with me. Am I right, sir, in saying that you have made a submission to the Human Rights Commission concerning the submission to FaCSIA, Human Rights Commission application for temporary exemptions under the VDA 1992, in relation to the BSWAT tool?‑‑‑Rings a bell.

PN1646

Can I show you what I've got, I Googled it?‑‑‑It's a long time ago.

PN1647

Research?‑‑‑I think I actually even mentioned it in my statement, in my - - -

PN1648

That might have been where we Googled it from, sir?‑‑‑Yes, probably.

PN1649

Can I ask you to have a look at it, I've taken this off the Australian Human Rights Commission website, it's your name at the end of it, I just wonder if you can tell me whether or not it's a statement you made?‑‑‑It appears to be.

PN1650

You have no reason to doubt that?‑‑‑Well, I haven't read it all.

PN1651

I'm happy to give you a moment to read it?‑‑‑It's going to take me more than a moment to read.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1652

We'll just go through it instead. Can I take you to the first paragraph? You say here:

PN1653

I've worked in the disability employment field for 30 years.

PN1654

It sounds like you, sir:

PN1655

And have constantly opposed the government's use of taxpayer's dollars to found an outmoded, segregated model of employment service for people with disabilities.

PN1656

So I take it for 30 years you've been a strong advocate against segregation of disabled people in employment?‑‑‑I wouldn't say an advocate, but I have certain views, yes, about segregation and inclusion and the use of tax payer dollars to - - -

PN1657

You don't support segregation?‑‑‑No, not philosophically, no.

PN1658

That's all right.

PN1659

VICE PRESIDENT HATCHER: Just so I understand what you mean, you mean the supported employment model which arose out of the old sheltered workshop model, you call that segregation, do you?‑‑‑Yes. I call it a segregated employment service model, by and large, as opposed to an integrated social enterprise model where the percentage of employees with a disability mirror that of society, so maybe 20 per cent of the employees would have a disability. That's how I differentiate those two things.

PN1660

MR WARD: ADEs are the representation of segregation?‑‑‑Of a segregated employment service delivery model.

PN1661

Open employment, like at KFC, for example, that's not a segregated employment?‑‑‑No, it's inclusive employment, yes.

PN1662

Can I ask you to go the fifth paragraph, you talk a little bit about what Maccess does in all of this. The very last sentence is this:

PN1663

In my role as an MPA assessor I have undertaken many SWS assessments in ADEs, the most progressive of which have been using the Supported Wage System for many years.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1664

So you have a view, do you, that if you use SWS you're progressive and if you use something else you're regressive?‑‑‑Well, I suppose, put it this way, I believe that supported wages delivers a fairer wage outcome.

PN1665

So if I'm using the SWS I'm progressive, am I? Yes?‑‑‑Well, if defined as delivering as a fairer wage outcome, yes, progressive. Yes, I said it.

PN1666

Yes, you said it. So if I'm not using the SWS I'm something else, other than progressive?‑‑‑I'm not sure what you're getting at. I've told you my views on the model, and they're public record. I also have very good professional working relationships with a number of ADE managers and staff as well, so it hasn't stopped me doing that.

PN1667

Can you turn to the third page and go down to the bottom paragraph, you say this?‑‑‑Third page?

PN1668

Yes. Bottom paragraph starts with, "I've always been flabbergasted", do you see that?‑‑‑Yes.

PN1669

I've always been flabbergasted at while it took rigorous research, years of development involving consultation with disability experts and a Full Bench decision of the ARIC to create the sanction of SWS, BSWAT and a whole gamut of similar tools got through with some fairly dodgy research and mere administrative theatre.

PN1670

So you think that all of the non-SWS tools are dodgy tools, do you?‑‑‑No, I didn't say that.

PN1671

Really?‑‑‑I said the research, and I can tell you which research, there was research done - when there was an evaluation of the Supported Wage Tool, the only full evaluation, done in 2001, the recommendation of that evaluation was that supported wages should be extended into - with a few modifications should be extended into what was then called business services. Then a consultant, various people disagreed with that, well ACROD at the time, so they commissioned some research to disparage supported wage assessment. That's what I'm referring to. The research was basically qualitative, it was just based on the opinions of ADE managers, there was no quantitative comparisons of wage outcomes or anything. So that's what I'm referring to.

PN1672

You didn't agree with that research?‑‑‑Hey?

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1673

You didn't agree with that research?‑‑‑Well, I thought it was very poor research.

PN1674

You didn't agree with it?‑‑‑I thought it was poor research.

PN1675

Did you agree with it or disagree with it, sir?‑‑‑Well, I disagreed with the contents of it and I thought it was very poorly done.

PN1676

If you turn the page, so I'll ask you to turn two pages, you then say this. It's bolded, I assume that there's a reason it's bolded?‑‑‑This is page 4?

PN1677

I'm now at a page that starts with, "What I also find greatly objectionable", are you at that?‑‑‑Yes.

PN1678

Okay:

PN1679

What I find greatly objectionable is FaCSIAs continued intransigence and non-acceptance of the Full Bench Federal Court decision of BSWAT is a flawed and inherently discriminative system, not just for two individuals with intellectual disability but I would argue for all people with disability. The system was deliberately engineered to lower the ADE wage bill.

PN1680

So you think that the system was simply designed to cut costs and wages bills, do you?‑‑‑BSWAT, that's - and I think - yes, I do.

PN1681

Do you hold that view for other tools?‑‑‑Well, no, because I - I - no, I don't.

PN1682

Is that because you don't know anything about the other tool?‑‑‑My comment is with regard to BSWAT so I don't know that you can ask me - - -

PN1683

So you have no view about the other tools?‑‑‑I'm not a fan of competency based wage assessment, put it that way.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1684

Why not?‑‑‑Because I believe that competency assessment should be used to - as I've said in my statement, should be used to determine someone's suitability for employment, where to insert them in the relevant job classification in the award, for performance appraisals, for reclassification, promotion, for bonuses, rewards. I think that's what competency based assessment should be used for and I believe that someone's actual wage determination should be done through productivity based assessments. That's what I mean by - - -

PN1685

But only for disabled people?‑‑‑Well, supported wage - - -

PN1686

That competency stuff is fine if you don't have a disability?‑‑‑No, but that happens - no, it's not an either or. It's not an either or, that's not what I'm saying.

PN1687

So if you turn the page, I've almost finished with this, there's a bolded section about two-thirds of the way down, finishing with, "Just delaying the inevitable." Then you say this:

PN1688

Philosophically, demographically and economically the ADE segregated employment model is clearly outmoded. This model of employment service provision defies any reasonable definition of integration of social inclusion. Miraculously the national disability service standards somehow exempt ADEs when they talk about inclusion.

PN1689

And can I ask you to turn the page, after you've said, "Enough is enough", three paragraphs down, you say this:

PN1690

Rather, I'm of the belief, and have been for many years, that a condition of ongoing ADE funding should be immediate reverse integration action, immediate transitioning of employees into retirement, recreational options, open employment workforce and immediate staggered movement to the SWS wage assessment. Sure, timelines need to be set in the process, but definitely not a three year process of EDA exemption for the BSWAT.

PN1691

So I take it that you have a fundamental belief that the ADE model needs to go?‑‑‑It's not one I support, no.

PN1692

You say here, "We need to immediately reverse that"?‑‑‑I think - I have a belief about reverse integration, you know what I mean by that?

PN1693

Yes, I do.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1694

VICE PRESIDENT HATCHER: I don't?‑‑‑Reverse integration is a process of converting segregated ADEs into integrated social enterprises that employ - as I said before, I think those social enterprises should mirror the community and if you look at statistics, 20 per cent of the community have a disability, so that's what I'm arguing. That's my philosophical preference.

PN1695

What's the reference after that to transitioning of employees into, the first one, retirement, what's that do?‑‑‑Well, that's - well, that's happening now. As ADE employers get older, retirement options. Sometimes employment's not the right option for people so they should be looking at other community access recreational options, or there's a lot of people in ADEs - - -

PN1696

One at a time, what are recreational options?‑‑‑Community access recreation rather than - I've been to some ADEs where people are sitting and really doing nothing, they should be doing something. So in terms of their life, quality of life, there are community options that are probably better.

PN1697

I don't understand, so a community option, what does that mean?‑‑‑Well, it could be art projects, or it could be - accessing the community, doing recreation, life skills, the whole range of other options.

PN1698

From your perspective, do you see your preference for the universal implementation of SWS being associated with the phasing out of the ADE model, that is, they go hand in hand?‑‑‑I'm not sure what you're asking.

PN1699

From your perspective, that is, having regard to the opinions expressed in this document, do you associate your preference for the universal implementation of the SWS model to be associated with, that is, something that would go along with the phasing out of the ADE employment - - -?‑‑‑No, because I believe it can be used in ADEs to deliver fair wage outcomes. So if ADEs continue to exist then I think - I've always believed that we should have a unitary, you know, one wage assessment tool across all workplaces and that's why I agreed to participate in the trials about modifying the supported wage. I've always believed that there's been problems with the supported wage and I've supported reforming it and I still - I've always been a critic of aspects of supported wages, as well as an assessor, so - - -

PN1700

And how might it be reformed?‑‑‑Well, the modified supported wage clause, for example, by introducing - allowing the use of historic internal data to compensate for over-performance during, you know, an assessment, or in some cases it's under-performance, people have a meltdown and things like getting rid of the $84 minimum, you know, I don't think - and changing - allowing along the trial period not having mandatory annual reviews, those sorts of things. I think it can also be - there's still room for improvement, but that's not so much with the tool itself, but with the way the government actually administers and implements the program, but that's a separate subject, yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1701

Thank you.

PN1702

MR WARD: So, Mr MacFarlane, in your perfect world, the ADEs would be phased out?‑‑‑In my perfect world?

PN1703

Yes, well, this is your statement?‑‑‑Well, no, they'd be - they'd be turned into - through a process of reverse integration into more inclusive social enterprises.

PN1704

So they would end up with - - -?‑‑‑So it's a process of transition. So I'm not saying - - -

PN1705

You want to see them move to a world where the majority of their employees don't have disabilities and some do?‑‑‑That mirrors, yes, I think that might assist with financial viability as well.

PN1706

And that's different to open employment, isn't it?‑‑‑Mm?

PN1707

That's different to open employment?‑‑‑Well - - -

PN1708

I'm asking you a question. I'm asking you a question?‑‑‑Social enterprises?

PN1709

Yes?‑‑‑Well, under the current definition?

PN1710

Yes?‑‑‑Open employment and supported employment are government definitions. A social enterprise operates in the open employment market, so, you know.

PN1711

VICE PRESIDENT HATCHER: Can you just explain what you mean by a social enterprise?‑‑‑A social enterprise is a business whose profits are put back into, you know, the company. So it might be - I don't know if you're familiar with an organisation called Street? They run caf�s and a catering company and they run training for disadvantaged youth and all their - all their profits go back into - into the - into the - into the running of the business and the training of disadvantaged youth. That's what I mean by social enterprise.

PN1712

So the profit motive is subordinate to a social objective?‑‑‑Yes, yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR WARD

PN1713

MR WARD: That's no different to an ADE, is it?‑‑‑Well - well, most social enterprises are integrated workforces.

PN1714

I'll ask about the profit. You talked about social enterprises putting their profits back into the business?‑‑‑Yes.

PN1715

ADEs do that?‑‑‑Yes, I know, but - yes, yes.

PN1716

The answer is "Yes". So you would prefer a world, as I understand it, where we create social enterprises and you want more and more people with disabilities in open employment. That's the world you want?‑‑‑That's my philosophical preference, yes.

PN1717

And to get them in open employment based on your evidence, people are going to go and negotiate to create work that wasn't there before in Coles, in KFC, whatever?‑‑‑Wherever, any employer.

PN1718

And if you can't get there, you'd like people to retire and go home?‑‑‑No, no, the retirement option is age appropriate. I'm not expecting - you know, I'd love to retire.

PN1719

I'm not sure what "age appropriate" means. Or you want them to go to the park, do art work, go to the pictures?‑‑‑Well - well, I think that's - that's someone's choice and in the NDIS process will, as that evolves, people have more control and choice in their options. So it will be interesting in 10 years' time to have this discussion to see what people choose. So, I don't know.

PN1720

What if someone chose to work in an ADE?‑‑‑Well, that's their choice, isn't it?

PN1721

Nothing further. Thank you, Mr MacFarlane.

PN1722

VICE PRESIDENT HATCHER: Mr Stroppiana?

PN1723

MR STROPPIANA: Yes, thank you, your Honour.

CROSS-EXAMINATION BY MR STROPPIANA�� [3.34 PM]

PN1724

MR STROPPIANA: Good afternoon, Mr MacFarlane.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1725

VICE PRESIDENT HATCHER: I'm sorry, Mr Ward, do you want to mark that document?

PN1726

MR WARD: Yes, sorry, yes.

PN1727

VICE PRESIDENT HATCHER: Do we have a date? Do we have a date?

PN1728

MR WARD: I'm not doing very well today.

PN1729

VICE PRESIDENT HATCHER: Do we have a date for this document and how old it is?

PN1730

MR WARD: As on the Human Rights Commission website, it's an undated document, I'm afraid.

PN1731

VICE PRESIDENT HATCHER: Mr MacFarlane, do you know when you prepared that document?‑‑‑Just let me have a look and see whether I have mentioned it in my - I think it's 2010. Was it the (indistinct) document?

PN1732

MR WARD: Sorry?‑‑‑Was it the (indistinct) document?

PN1733

Yes, I think it was, yes?‑‑‑Yes, I think it's 2010 then. But I think. I'm not a hundred per cent sure.

PN1734

VICE PRESIDENT HATCHER: And just to be absolute clear, there's no doubt that you authored this document?‑‑‑Yes.

PN1735

Yes, all right?‑‑‑No doubt whatsoever.

PN1736

Document entitled "Submission to FAHCSIA's Human Rights Commission application for temporary exemptions under the DDA 1992" authored by Robert MacFarlane will be marked exhibit 12.

EXHIBIT #12 DOCUMENT ENTITLED "SUBMISSION TO FACHSIA'S HUMAN RIGHTS COMMISSION APPLICATION FOR TEMPORARY EXEMPTIONS UNDER THE DDA 1992" AUTHORED BY MR ROBERT MACFARLANE

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1737

VICE PRESIDENT HATCHER: Mr Stroppiana.

PN1738

MR STROPPIANA: Yes, thank you, your Honour.

PN1739

Mr MacFarlane, my name is Mark Stroppiana. I'm from the Endeavour Foundation?‑‑‑Yes.

PN1740

And I'm just asking you a couple of questions in respect to your statement. I know you have a copy of your statement in front of you?‑‑‑Mm.

PN1741

Look, just a question and I'll frame this question in very broad terms as it relates to - and I just want to clarify - at paragraphs 30 - and, please, if you can just refer to them?‑‑‑30?

PN1742

Yes, paragraphs 30 through to 40. I've got a number of questions and what I propose to do is just ask the question broadly in respect of all of those paragraphs. So if you need more time - - -?‑‑‑Yes, so these are examples of job redesign, yes.

PN1743

Yes, yes. So in respect of those jobs that you describe at paragraphs 30 to 40 of your statement, and there's three issues, I take it that all of those examples relate to employment placements in open employment?‑‑‑Yes.

PN1744

If you need to refer to your statement just to check, please feel free to?‑‑‑Yes, that whole section is about - - -

PN1745

Open employment?‑‑‑ - - - open employment, job redesign in open employment.

PN1746

Okay, thank you. And is it fair to say in each of those examples you give, it's fair to say that it's generally one or a small number of disabled employees entering the workforce which is predominantly able-bodied or non-disabled-bodied?‑‑‑Well, I would suggest that Coles and Woolworths have hundreds of people.

PN1747

No, but for the individual who may go to a specific Coles or Woollies Supermarket?‑‑‑Well, some Coles and Woolworths stores have more than one person.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1748

You would accept, though, that the majority of employees in those work sites, whether it's Coles or Woollies or the other examples you give in those paragraphs, would be non-disabled employees?‑‑‑Yes, well, that's - that's taken for granted.

PN1749

Yes, okay. And would you further then accept that the employment terms and conditions of each of those employees would not be covered by the Supported Employment Services Award?‑‑‑No.

PN1750

No, they would be covered by the respective industrial instrument?‑‑‑Whatever.

PN1751

Sure, okay. Now, Mr MacFarlane, at paragraph 16 of your statement, you refer to the decision of the Full Bench of the AIRC in 1994?‑‑‑Yes.

PN1752

Now, you accept that that decision related to the use of the Swiss model in open employment?‑‑‑The Full Bench decision?

PN1753

Yes, that original decision?‑‑‑Yes.

PN1754

Okay, okay. And similarly, at paragraph 17, you refer to a 2001 SWS evaluation report?‑‑‑Yes.

PN1755

Do you see that?‑‑‑Yes.

PN1756

Again, that relates to open employment, does it not?‑‑‑The evaluation report?

PN1757

Yes?‑‑‑No, it deals with all supported wage assessments some of which happened in ADEs or business services as they were then called and some of which happened in open employment.

PN1758

All right, okay, thank you. Now, if I can turn to paragraph 24 of your statement where you talk about an employee unloading stock from a detached freight. Do you see that there?‑‑‑Yes, yes.

PN1759

Now, again, that's an example in open employment?‑‑‑Yes.

PN1760

It is, okay, thank you. Now, in paragraph 25, you talk about the fact that the Swiss assessment does not just involve the speed test?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1761

Do you accept - do you have experience of ADEs?‑‑‑Yes, over many years.

PN1762

Many years, you've been to many ADEs?‑‑‑Been to a lot of them, yes.

PN1763

Do you accept that particularly for more high needs employees, ADEs organise the work and the jobs for very distinct and small tasks?‑‑‑Could you repeat that? I'm not sure.

PN1764

Do you accept in an ADE, work is deconstructed in such a way that some tasks, particularly for the more higher needs employees, may be very straight forward and very simple?‑‑‑Yes.

PN1765

Yes, okay, okay. Now, in those sort of situations where an employee is doing a very simple task and his Honour gave the example of an employee who may be sorting forks and knives and spoons into various piles. Is there challenges applying a Swiss assessment and working out what an appropriate benchmark productivity should be?‑‑‑I've never had difficulty. I've never had a difficulty doing it. It's just, as I say, it's a process of negotiating with the employer on a fair methodology that everyone is in agreement with. I've never had a problem.

PN1766

Never had a problem. Well, one of the problems which comes to my mind is that how would you benchmark that because I would accept that - well, you may accept or you may not accept that there is unlikely to be a job similar to that in open employment being performed by an able-bodied employee?‑‑‑But that's irrelevant.

PN1767

Isn't the Swiss model predicated on assessing the performance of an employee as a percentage of the performance of an able-bodied employee?‑‑‑No.

PN1768

It's not?‑‑‑It's based on - the comparator can be - if the comparison is someone, regardless of disability, able to perform at the level - at the level acceptable for the payment of a full wage. I have had comparators that have been people with disability.

PN1769

VICE PRESIDENT HATCHER: Mr MacFarlane - - -?‑‑‑Yes

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1770

- - - when you say the level acceptable for the payment of a full wage, acceptable to whom? That is, you know the award doesn't say anything about productivity standards. So when you say "acceptable", acceptable to whom?‑‑‑Well, to the employer.

PN1771

To the employer. So it's based upon an assessment of what the employee would want in order to pay the wage prescribed by the award?‑‑‑Could you say that again?

PN1772

The SWS assessment is based on the productivity that the employer will desire as a return for paying the full award wage?‑‑‑Yes, and the - so the comparator doesn't have to - it can be anyone who is earning - who is earning the full wage.

PN1773

Thank you.

PN1774

MR STROPPIANA: Well, I might have this wrong, Mr MacFarlane, but my understanding of the Swiss assessment is that it is an assessment of the productivity of an employee with a disability - - -?‑‑‑Yes.

PN1775

- - - compared to a benchmark which is set by reference to the productivity of a non-disabled employee doing the same task. Is that not the benchmark that is used under the Swiss tool?‑‑‑But if the - the comparator - you know, not everyone with a disability works - has productivity issues.

PN1776

I'm not suggesting that's the case?‑‑‑So why does the benchmark have to be only someone without a disability? I don't understand the question. I can't see the relevance of the question.

PN1777

Well, maybe if I give you another example. If I give you another example, if we have a disabled employee working in an ADE or, let's take an example from Coles and Woollies that you certainly have familiarity with. If a disabled employee in open employment in a Woolworths Supermarket is stocking shelves and, you know, they can stock shelves at a certain number of cans, you know, per five minutes, and if an able-bodied employee - if the benchmark for an able-bodied employee - and I'll make the mathematics very simple for myself - can stock 50 cans in a minute and a disabled employee can stock 25, isn't the benchmark you use that the 50 cans a minute?‑‑‑Yes, but that could be - like, you could have an employee who's deaf and who is on a full wage could be the comparator, for example.

PN1778

No doubt, but isn't the benchmark based upon the productivity you would normally expect from a non-disabled employee at that award classification, isn't that the benchmark?‑‑‑You keep using the term, non-disabled person, that's irrelevant for setting a benchmark. So the point is - - -

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1779

You disagree with that?‑‑‑There is a process in setting a benchmark, I agree with that, and in your example that benchmark might be 50 cans. So whether the comparator is someone with a disability or not is irrelevant. They're a person that's being paid a full wage.

PN1780

VICE PRESIDENT HATCHER: Mr MacFarlane, in the Nojin case, perhaps putting it over - over-simplifying it, but the BSWAT tool hit the fence because it was assessing disabled persons by reference to criteria which had no relationship to the award itself, is that a fair summary do you think?‑‑‑I don't know the answer to that. I'm not familiar with the full judgment.

PN1781

The SWS is assessing people by reference to agreed productivity benchmarks?‑‑‑Yes.

PN1782

Which have no reference to anything in the award, is that right?‑‑‑I suppose it goes back to the standards and the expectation of performance that someone in a particular classification doing the work is expected to deliver. So in that sense it is going back to the award.

PN1783

Well, expected by the employer?‑‑‑But the actual figures obviously aren't in the award because that's something you negotiate. Every assessment is different.

PN1784

In making its awards the Fair Work Commission and its predecessors, with some very particular exceptions, have never set any benchmark of productivity for payment of a particular wage?‑‑‑No.

PN1785

SWS is using a benchmark which is determined externally to the entire award process is it not?‑‑‑Yes I suppose, by negotiation with the employer and by, you know, undertaking observations and timings in the workplace. But I suppose that whole process is set in place by the fact that's the supported wage model clause in all the modern awards and in many EBAs that allows that process to take place.

PN1786

MR STROPPIANA: Mr MacFarlane if you can turn to paragraph 44 of your statement?‑‑‑Yes. This is the warehouse example?

PN1787

No, paragraph 44?‑‑‑44?

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1788

44, four four. You talk about a number of SWS assessments you've undertaken at Endeavour sites and you give a number of roles there; setting up, operating, dismantling, trouble shooting, cleaning computer, enumerated specialist food packaging machine production lines as well as experienced forklift driver and supervising an entire manual food packaging operation. You see that there?‑‑‑Yes.

PN1789

Would you accept that at those ADEs, and no doubt you are familiar with those ADEs, your workplace ADEs, it would only be a minority of employees who would be able to complete those tasks?‑‑‑Yes.

PN1790

You would accept that the majority of employees would be unlikely to be able to undertake those tasks?‑‑‑Yes.

PN1791

Paragraph 45, and I know you've already been asked some questions about - forgive my pronunciation - but Mambourin, is it?‑‑‑Yes.

PN1792

Mambourin Enterprises. Halfway down approximately the sentence reads:

PN1793

Myself and a few other SWS assessors over the years have assisted them develop an internal system of production records enabling them to take productivity timings.

PN1794

Do you see that?‑‑‑Yes.

PN1795

Can you expand on that? What were those systems or processes?‑‑‑Well, basically I suppose it was because this particular ADE had concerns that certain of their employees, not all of them, would speed up during the assessment. Normal human reaction, you go a lot faster than you normally do. So the only way - and I use this system in open employment with some employers as well, is basically using in-house production data to get a fairer overall outcome. So in this case it was them doing counts of, you know, whatever task or observations. Recording them and then getting the - like, the individual was told and they'd sign off. So it's a system of validating in-house production and it's basically what is now going to go into the SES Award, it's a similar system.

PN1796

So it's a manual system?‑‑‑Yes.

PN1797

Who does the counting?‑‑‑Who does?

PN1798

Who does the counting?‑‑‑The supervisors.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1799

Do you accept that that will be, if that sort of system was implemented across ADEs that would be a substantial administrative burden for supervisors?‑‑‑Not really no.

PN1800

You may or may not but - - - ?‑‑‑You just make it part of your - it's the way you operate. I can't see - once the system is in place it's not that difficult to implement.

PN1801

You are aware that there are - you may or may not but the Endeavour Foundation operates some quite large ADEs?‑‑‑Yes.

PN1802

With employees of over 200?‑‑‑Yes.

PN1803

You don't consider that would be a substantial administrative burden for someone to do those manual tasks?‑‑‑Well, no more than implementing whatever existing wage assessment tools you use, no.

PN1804

Well, the wage assessment tools is a process which has to happen each year?‑‑‑Yes.

PN1805

The productivity accounting is something which is ongoing isn't it?‑‑‑Well, the way it works in the ADEs where I've done assessments is that it's done - it's not necessarily something you do all year, it's done in the period prior to an official assessment. So maybe in the three months beforehand so it's not something that is required all the time. It's a way - and, you know, as the Commission has recognised, they're putting in a new modified SWS clause into the SES Award effective July this year, so, you know, it's there but it's' not something that requires daily extra administration, no.

PN1806

DEPUTY PRESIDENT BOOTH: Mr Stroppiana, might I interrupt on that point to ask something. Mr MacFarlane, do you consider that that historical data could be expanded by introducing a category to take into account down time, time off task and behavioural issues?‑‑‑Well, that's built into it. If when, you know, that data is being - that production data is being collected someone is - walks off the task, well, that time goes into the data. It's the same as when I do an assessment, if someone goes wandering in the middle of it, well, the clock keeps ticking. So that sort of down time or distraction, you know, sitting there looking into - that sort of thing is part of the data.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1807

So if the historical data was collected over a long enough time frame you think it would be appropriate to include that in it?‑‑‑Yes, and it is in the places that I do assessments.

PN1808

MR STROPPIANA: Mr MacFarlane, you would be aware, would you not, that in many ADE situations jobs are undertaken in a group sense and that there may be many employees who may form a production line if you like?‑‑‑Yes.

PN1809

To produce a specific product?‑‑‑Yes.

PN1810

And that if one of those employees goes off task that will affect the productivity of the entire group would it not?‑‑‑Yes, but how does that - I'm not sure - - -

PN1811

I am just asking the question?‑‑‑Well, it could, it could.

PN1812

Do you accept then that trying to manually keep production records where jobs are being done by a group will be more difficult - well, there's additional challenges?‑‑‑Yes.

PN1813

That ADEs would have to face collecting that data when jobs are done by groups of employees?‑‑‑Well, I think that the collection of production data is aligned to the tasks that are going to be used in an assessment, so it may not - you know, as with assessments - you don't assess absolutely everything. You agree on a representative range of tasks, I give an example in Mambourin, they have two sort of duties with seven tasks and that is what they tend to use and that's what they collect the data on. So it's not absolutely everything they do.

PN1814

I am not suggesting it is - - - ?‑‑‑Yes, so my answer would be, you'd only collect the data for the tasks that you were going to be using in the assessments, not for absolutely everything.

PN1815

I am not suggesting that but if you are collecting the data on a task of - a packing task, for example, that may be done by a group of six employees, would you accept that it will be very difficult to collect individual data when you've got six people in a group performing the job?‑‑‑I think there's ways around it.

PN1816

Such as?‑‑‑Well, I know - I go back to an Endeavour Foundation setting where people are in a production line, so there's four tasks. One person is filling up a bag, the other one weighing it and checking it, the other one heat sealing it, the other one packing it and then putting it on a pallet. I think it's very easy to isolate each task and keep records on that.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1817

If one of those employees goes off task, how does a supervisor have regard - - - ?‑‑‑Well, going off task is included in the data.

PN1818

But won't that impact the production records for the other three employees if we use the example you've given?‑‑‑But you're not necessarily collecting the data of every individual. Like, the collection of data should be individualised, there's ways of doing it, you know, I can't see that it's a problem.

PN1819

I know you've been asked about paragraph 47, Clean Force Property Services. You've explained what a social enterprise is?‑‑‑Yes.

PN1820

Can you just explain to me, do you know what the number of employees of that organisation is?‑‑‑No, I don't. I'd be guessing.

PN1821

Do you know what the percentage of employees with a disability would be as opposed to employees without a disability?‑‑‑No.

PN1822

You wouldn't know if it's 50/50?‑‑‑No, I'm not going to guess, I don't know.

PN1823

Would it be similar to an ADE?‑‑‑I really don't know.

PN1824

How long has it been since you've worked with that organisation?‑‑‑Well, since it started in 2001.

PN1825

Sorry, you may have misinterpreted the question. How long has it been since you've done work for that organisation?‑‑‑Last night.

PN1826

So you've done work for them as recently as last night?‑‑‑Yes, and next week I'm doing four assessments up in Bendigo with them.

PN1827

And you don't know what the - you wouldn't be able to advise this Commission - - - ?‑‑‑Look, because they've got operations in Tasmania, Sydney, rural Victoria, I deal with mainly the Melbourne based ones. I have no idea.

PN1828

If you can confine your answer to the Melbourne based business?‑‑‑Yes, I don't know how many people they have employed. They have cleaning crews that go out to various sites, I'm not sure, I'd just be guessing.

PN1829

I am not suggesting you provide us with data - - - ?‑‑‑I can find out for you.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1830

VICE PRESIDENT HATCHER: Mr Stroppiana, he doesn't know.

PN1831

MR STROPPIANA: That's fine, I'll move on. Paragraph 50, Wesley Fire & Clay in Lilydale?‑‑‑Yes.

PN1832

Do you know how many employees they have?‑‑‑Again, I'd be guessing, maybe 100, maybe 80, because the thing is, when I'm there not everyone is there because a lot - as you know a lot of ADEs have part time staff so they're not always - everyone is there at the same time.

PN1833

If I can ask you to turn to page 14 of your statement. It is under the heading, "A special and unique work environment." You talk, in part, there - - - ?‑‑‑Which paragraph?

PN1834

Sorry, under the heading "A special and unique work environment", on page 14 of your statement?‑‑‑Yes.

PN1835

You see that? And at paragraph 57, you talk about the specific funding that ADEs receive; do you see that?‑‑‑Which paragraph?

PN1836

Fifty seven?‑‑‑Fifty seven, all right. Yes.

PN1837

You would accept, would you not, that ADEs can face behavioural challenges from time to time with specific individuals?‑‑‑Yes.

PN1838

Would you accept that type and regularity of such behavioural issues is completely different to what you would normally expect in open employment?‑‑‑Not necessarily.

PN1839

Not necessarily? Would you accept that, given ADEs as a model predominantly are employed by people with a disability, that it is likely that instances of employees escalating and wandering off task would be more prevalent that what you would normally expect in open employment?‑‑‑Yes.

PN1840

Now, Mr MacFarlane, if you can turn to your conclusions, which commence on p.18 of your statement, and specifically, paragraphs 80 and 81. It is your evidence, is it not, that you believe that the modified SWS tool is a suitable tool for use by ADEs?‑‑‑I do.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1841

And that it's a tool which is suitable, and works efficiently for ADEs?‑‑‑That's my belief.

PN1842

That's your belief. All right. Mr MacFarlane, I'm going to give you a report, which is - - -

PN1843

DEPUTY PRESIDENT BOOTH: Before you move on, MacFarlane, in paragraph 83, you refer to the SWS being a long sanctioned affirmative action industrial relations measure. Why do you call it an affirmative action measure?‑‑‑Well, because it basically - affirmative action, in the sense that most employers that use it have gone beyond - well, they've re-designed jobs in a way - to create positions for people who otherwise wouldn't have a job. To me, that's positive discrimination, and that's affirmative action. That's how I view it.

PN1844

How is that causally related to use of the SWS, though? That is, why does the use of the SWS, if it does, cause people to take measures to create employment for disabled people?‑‑‑Well, that's why it was introduced. That was the whole rationale behind introducing it, was to create employment opportunities for people with significant disabilities, who otherwise wouldn't be employed. And the reality is that the majority of those people are unable to work in jobs - in regular jobs. So that has resulted in a lot of -

PN1845

Because it discounts award wages?‑‑‑No, because of the nature of the disability of people. They're not - so employers have created positions, and then used the supported wage to remunerate the employees. That's what I mean.

PN1846

All right. Mr Stroppiana.

PN1847

MR STROPPIANA: Thank you, your Honour. All right. Mr MacFarlane, I've provided you with a report called "Evaluation of the modified supported wage system trial". Do you have that in front of you?‑‑‑Yes.

PN1848

And, your Honour, that's Exhibit 3. It has already been admitted. You're aware, are you not, that a trial was conducted by the Department of Social Services - - -?‑‑‑Yes, I was involved in it, in the first trial and in the second.

PN1849

So you were involved in the trial, were you not?‑‑‑Yes.

PN1850

Yes. Now, have you seen this report before?‑‑‑I've seen it, but I don't think I've read it.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1851

All right. Well, I just want to take you to a couple of parts of the report. Firstly, page 3, which is Roman numeral III. You will see, two thirds of the way down that page, there's a heading, "Perceived accuracy of the modified SWS"; do you see that?‑‑‑Yes.

PN1852

What I want to do is just take you to a couple of parts of this report and ask you to provide me with your response. Firstly, if you have a look down, the second sentence in that paragraph provides, "Interviews indicated 80 staff had mixed views of the accuracy of the assessments. Many believed the assessments overestimated at least some of their employees' productivity. Some assessors thought that the results accurately reflected supported employees' productivity, while others thought results overestimated employees' productivity, based on their impressions and information provided by ADE staff." Now, do you accept that that was an impression of ADE staff, that there was an overestimation of productivity?‑‑‑Not in the sites that I was involved at.

PN1853

Now, if I take you to the paragraph underneath that, you'll see that paragraph commences, "Most of the factors". If I can take you to the third sentence, which reads, "However, there remains questions about how to assess employees who do not usually complete a task to the required standard on their own, as compared to those who do, and when assessing employees completing tasks as a group or on a production line." Do you see that?‑‑‑Yes.

PN1854

Would you accept that the report highlights that there remains issues with the ability of using the SWS tool when employees are undertaking tasks as a group, or on a production line?‑‑‑Can I just have a moment to re-read it?

PN1855

Sure, please?‑‑‑Well, that's what the report says. I don't necessarily agree with it.

PN1856

You don't agree with that - all right. If you can turn over the page, to IV. And again, the first paragraph on that page - - - ?‑‑‑Where are we? Page IV?

PN1857

Page IV. The second sentence in that paragraph provides, "There was some concern that if job design was not taken into account, employees doing more complex tasks at a slower rate could be disadvantaged, and that it could have an impact on jobs - - -" ?‑‑‑Where are we? Which -

PN1858

The second sentence in that top paragraph?‑‑‑All right, yes.

PN1859

Do you see that there?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1860

Commencing, "There was some concern"?‑‑‑"There was some concern -"

PN1861

I'll just let you read that sentence?‑‑‑Yes.

PN1862

All right. I put it to you that the authors of the report are highlighting the concern that if the modified SWS trial was applied to ADEs as the only tool, there is the real risk that employees undertaking more complex tasks at a slower rate than an employee who may be undertaking a very simple task at a faster rate is going to be remunerated less than the employee undertaking the simple task?‑‑‑Well, my response to that, in my experience, people with more significant disabilities doing very basic tasks usually have very low productivity, and those doing more complex tasks usually have higher productivity. So I'm not really aware of that many examples of what you're referring to, personally.

PN1863

Do you accept that that possibility does exist?‑‑‑I think it would be quite rare, and I don't see it as reason to discredit the whole modified supported wage tool, which the Commission has agreed to put in the award.

PN1864

Well, it's obviously already in the award, it's obviously - - - ?‑‑‑Yes. As of July, it's going to be operational.

PN1865

Do you think it's appropriate that whatever wage assessment tool or tools are used are fair and reasonable?‑‑‑Can you say that again?

PN1866

Do you believe that whatever wage assessment tools are used to assess the wage rate of a person with a disability, they should be fair and reasonable?‑‑‑Fair, reasonable, and also independent, I think is the crucial thing. Independent assessors.

PN1867

So you accept they should be fair and reasonable?‑‑‑Yes.

PN1868

Do you think it is fair and reasonable to have a situation where an employee who is doing a more complex task potentially is remunerated less than an employee doing a very simple task?‑‑‑It's a hypothetical question you're asking, because in my experience of doing SWS assessments in ADEs, I haven't seen this. It's a hypothetical. And if someone doing a very basic task is doing it at 90 per cent, then surely they should be remunerated accordingly.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1869

And so - but 90 per cent - - - ?‑‑‑In my experience, people with more significant disabilities doing very basic tasks usually have very low productivity. So the example you're giving is not one that I have seen.

PN1870

Well, it's certainly one which has been highlighted in this report, though; you accept that?‑‑‑Well, that's what the report says, but -

PN1871

All right. You'll see, further down that page, under the heading "Conclusion", and then the paragraph provides, "The trial has not provided a clear case that the modified SWS can be consistently applied by ADEs and assessors to provide an accurate assessment of supported employee productivity across a range of ADE operating concepts. However, it is not definitely proven that it cannot." Do you agree with that statement?‑‑‑Well, given the fact that the Commission has inserted a modified supported wage clause into the award, yes, I do, because it's saying neither here nor - you know?

PN1872

Well, I don't want to put words into your mouth, so I'll ask the question again. Do you accept that the trial has not conclusively proved that the modified SWS is appropriate for use across all types of jobs and operating situations for ADEs?‑‑‑But the crucial last sentence is, "However, it is not definitely proven that it cannot."

PN1873

All right. So you would accept that - - - ?‑‑‑So I agree with that.

PN1874

Would you accept that the trial, in that sense, is inconclusive?‑‑‑No, I wouldn't. Given the fact that the Commission had seen fit to introduce a modified supported wage clause into the award, I wouldn't agree with that, what you're trying to get me to say.

PN1875

I'm not trying to get you to say anything, I'm just putting the questions to you?‑‑‑So I wouldn't -

***�� ROBERT GRAHAM MACFARLANE�� XXN MR STROPPIANA

PN1876

Now, if you go down to the last paragraph in that - sorry, the second-last paragraph on that page, the authors of the report state, "However, clearer direction is needed on how employees should be assessed when they do not complete tasks to standard on their own, and to ensure consistency and fairness for employees completing tasks in a group or on a production line. Additionally, questions remain about whether the assessment could or should take into account the range and complexity of duties and tasks undertaken by employees, and the level of support and supervision the employees need." Now, do you agree with that statement?‑‑‑Well, not really. I think it all comes down to assessors having adequate training and expertise to be able to undertake assessment. So I don't necessarily agree with it, no.

PN1877

So you disagree with that finding in the report?‑‑‑Yes, I don't they're insurmountable problems.

PN1878

All right. No further questions, your Honour.

PN1879

VICE PRESIDENT HATCHER: Mr Christodoulou.

PN1880

MR CHRISTODOULOU: I just have a couple of minor questions, your Honour.

CROSS-EXAMINATION BY MR CHRISTODOULOU�� [4.15 PM]

PN1881

MR CHRISTODOULOU: Your Honour asked a question about affirmative action in the SWS. It's true, isn't it, that most people with disabilities that go into employment that are assessed under the SWS do so via a disability employment service?‑‑‑Yes - so I don't know what the percentage is. I do come across more recently of employers initiating it themselves, yes, but majority, yes, I'd say so.

PN1882

Okay, and secondly those employers, whilst they may receive a discounted rate under the SWS, I know that under the DES program they also get some other form of government assistance for a period of time. That would be right, wouldn't it?‑‑‑Depends what you mean by that. Some get wage subsidies, limited, maybe $1500.

PN1883

Yes?‑‑‑They also have access to ongoing support.

PN1884

Yes, so there are other incentives for employers to take on people with disabilities other than just the SWS?‑‑‑Yes, yes.

PN1885

Okay. I just wanted to clarify that. In terms of the BSWAT and its operation, it is right, isn't it, that the BSWAT was crafted by the government and it utilised independent assessors?‑‑‑Yes, through CRS I believe.

PN1886

Yes, so they were independent assessors that undertook the BSWAT?‑‑‑Yes.

PN1887

Yes, okay. Can I just take you to paragraph 70 of your statement?‑‑‑Which paragraph?

***�� ROBERT GRAHAM MACFARLANE�� XXN MR CHRISTODOULOU

PN1888

Paragraph 70?‑‑‑Seventy.

PN1889

And the last sentence there, you say:

PN1890

Not many ADE employees would have the nous and confidence to appeal in-house classification determinations.

PN1891

That's what you say?‑‑‑Yes.

PN1892

So what I would like to ask you, why do you think people with disabilities who have been assessed under the SWS would have more nous to appeal against an assessment?‑‑‑I think you're taking that out of context. I'm talking about - like - supported wage assessments are done by independent assessors, not in-house - - -

PN1893

Yes, okay. So they're done by independent assessors but that doesn't make that assessment correct?‑‑‑No, it doesn't but it - you know, (indistinct) conflict of interest.

PN1894

Well, I'll ask you that question. The thing is that if you're a person with a disability in open employment and you get independently assessed, you obviously have to have the same level of confidence and nous to be able to appeal against that decision?‑‑‑Yes, and some - some do get appealed against.

PN1895

So it would also be the same with people with disabilities in ADEs. Why would it be any different? What's the difference between a person with a disability in open employment being able to have a grievance against their assessment and a person in an ADE having to make a grievance against their assessment?‑‑‑Yes, but the grievance process in the proposed tool is only - it's not about the outcome, it's only about the level of classification.

PN1896

So - - -?‑‑‑I think you're taking it out of context, what I'm saying. If you read the sentence above, it's:

PN1897

Access to a qualified independent assessor is only available if appointed by the FWC in the case of a dispute about employee classification and skill level.

PN1898

It's not about - there's no independent - qualified independent assessor for the whole process in the proposed work classification tool. That's the context in which I'm saying that.

***�� ROBERT GRAHAM MACFARLANE�� XXN MR CHRISTODOULOU

PN1899

MR CHRISTODOULOU: Can I put to you that like any other employee in Australia, if there's a grievance - - -?‑‑‑Of course, I agree. Of course there's a grievance.

PN1900

The grievance will come to this Fair Work Commission - - -?‑‑‑Yes.

PN1901

- - - and it will be a matter for the Fair Work Commission to decide how it best determines that grievance?‑‑‑Yes.

PN1902

Is that not the case?‑‑‑Yes.

PN1903

Thank you.

PN1904

VICE PRESIDENT HATCHER: Ms Walsh, do you have any questions?

PN1905

MS WALSH: Thank you, your Honour.

CROSS-EXAMINATION BY MS WALSH�� [4.19 PM]

PN1906

MS WALSH: Mr MacFarlane - - -

PN1907

VICE PRESIDENT HATCHER: Ms Walsh, you have to make sure you're near a microphone so everyone can hear you.

PN1908

MS WALSH: Thank you. Mr MacFarlane, I'm Mary Walsh and I'm representing Our Voice Australia.

PN1909

VICE PRESIDENT HATCHER: Ms Walsh, how long do you think you'll be?

PN1910

MS WALSH: About five minutes.

PN1911

VICE PRESIDENT HATCHER: All right. Go ahead.

PN1912

MS WALSH: Very brief.

***�� ROBERT GRAHAM MACFARLANE�� XXN MS WALSH

PN1913

VICE PRESIDENT HATCHER: Deputy President Booth has a 4.30 matter. I don't want that to hurry you, we just need to factor that in.

PN1914

MS WALSH: No, that's okay. I think most of what needs to be covered has been covered. I just wanted to present the family and the worker perspective of those members that we represent.

PN1915

So I'll just simply take you to some of your comments rather than going through the statement you've already made, and one of those is that you have said you have close relationships with all the ADEs you work with. In your relationships as an assessor with those ADEs, do you or have you or did you have much interaction with the families of those, bearing in mind that our organisation represents only those with a severely profound intellectual disability, those who cannot self-advocate and those with limited capacity?‑‑‑The only family I have involvement with when I do supported wage assessments in an ADE is if on the application a family member is put down as the nominee, then I will talk to them. I did one recently at Mambourin where the mother attended the final meeting where we, you know, signed off the agreement as she advocated for her son who was there, and I briefed her on what had happened and she was happy with the whole process.

PN1916

Okay, so you do have some interaction?‑‑‑Some. Only if - - -

PN1917

If it's required?‑‑‑If they're nominees for the application.

PN1918

Yes. Thank you very much for that. And you did also make mention within your human rights stuff about the issue of what you perceive to be segregated employment?‑‑‑Yes.

PN1919

And I guess there's a fair amount of family angst out there because they don't necessarily - and I'm the mother of someone who worked in an ADE for 25 years - - -?‑‑‑Mm-hm.

PN1920

- - - don't necessarily see it as segregated so much as specialised. Can you see perhaps how the families would see that they are people who have specialised needs who may find it difficult to get employment in open employment, and that the ADE environment provides them with the support and specialised needs that they need? Is that a reasonable sort of, I guess, position?‑‑‑Well, look, I can see that that's how parents would feel but, you know, I still don't - I still have the views that I have.

***�� ROBERT GRAHAM MACFARLANE�� XXN MS WALSH

PN1921

That's fine, I wasn't challenging your views. I was just asking if you can understand how the families actually feel about that?‑‑‑Yes, I can understand the perspective of families and parents, yes.

PN1922

And one of the things that the families are concerned about is because there is an acknowledgement that introducing or mandating the supported wage system would increase - there would be an increased cost. We're not going to go into where that would come from but there would be an increased cost. That could create viability issues and then families are concerned that that could lead to job losses. So you did make mention that the modified SWS has now been accepted into the award and the BSWATs are long gone. So the issue that I think that it's important you understand is that there was agreement with all parties in the conciliation progress - - -

PN1923

VICE PRESIDENT HATCHER: Ms Walsh, there needs to be a question in there somewhere.

PN1924

MS WALSH: Sorry. I'm just going to get to that.

PN1925

VICE PRESIDENT HATCHER: All right.

PN1926

MS WALSH: So if there is an agreed - generally agreed extra expense, can you understand why there would be a certain amount of angst out there with families about the possibility of future viability issues? Given the report that you have just been presented with, the evaluation, if you could go to - and this is the last question, your Honour - if you could go to page - - -?‑‑‑Is this the evaluation of the modified - that one?

PN1927

Yes, that's - so that one is now in the award with the agreement of all parties - - -?‑‑‑Yes.

PN1928

- - - at the conciliation, and I'll take you to page little 2, and that is above "P findings". Can you find that?‑‑‑Yes.

PN1929

All right. If you would just read that, the last sentence in that paragraph. I'll give you time to read that?‑‑‑Is that the one, "There is sufficient data"?

PN1930

"There is sufficient data", yes?‑‑‑Yes.

***�� ROBERT GRAHAM MACFARLANE�� XXN MS WALSH

PN1931

And I mention that because that's the issue, the report to us was inconclusive. It provides some productivity issues and also some financial issues, and that was the concern for parents and families and workers, and then following on from that, that we agreed for it to go into the award, total agreement, but we did not agree that it should be mandated as the only tool. So that might explain why I asked that question. Thank you, your Honour.

PN1932

VICE PRESIDENT HATCHER: Thank you.

PN1933

MS WALSH: And thank you, Mr MacFarlane.

PN1934

VICE PRESIDENT HATCHER: I gather there will be no cross-examination in Sydney and none in Canberra. So Mr Harding, how long will re-examination take?

PN1935

MR HARDING: Your Honour, I have no re-examination.

PN1936

VICE PRESIDENT HATCHER: All right. Thank you for your evidence, Mr MacFarlane. You are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW�� [4.25 PM]

PN1937

VICE PRESIDENT HATCHER: Is it okay to stand over Ms Svendsen until the morning?

PN1938

MR HARDING: Yes, your Honour. Can I indicate, your Honour, we have got Ms Svendsen and then Mr Cain.

PN1939

VICE PRESIDENT HATCHER: Yes.

PN1940

MR HARDING: That order (indistinct).

PN1941

VICE PRESIDENT HATCHER: Are the parties in a position to start at 9.30 to make up any time you need?

PN1942

MR HARDING: Yes, your Honour.

***�� ROBERT GRAHAM MACFARLANE�� XXN MS WALSH

PN1943

VICE PRESIDENT HATCHER: Yes, all right. We will start with Ms Svendsen at 9.30 in the morning and we will now adjourn.

ADJOURNED UNTIL FRIDAY, 09 FEBRUARY 2018 �� [4.26 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATEMENT OF KAIRSTIEN WILSON DATED 19/10/2017 PN576

EXHIBIT #2 THE MODIFIED SUPPORTED WAGE SYSTEM DEMONSTRATION REPORT, MARCH 2017...................................................................................... PN598

EXHIBIT #3 ARDT CONSULTANTS FINAL REPORT, EVALUATION OF THE MODIFIED SUPPORTED WAGE SYSTEM TRIAL, 12/10/2016....................................... PN608

CHRIS CHRISTODOULOU, AFFIRMED....................................................... PN653

EXAMINATION-IN-CHIEF BY MR ZEVARI................................................ PN653

EXHIBIT #4 STATEMENT OF CHRIS CHRISTODOULOU DATED 21/09/2017 PN702

EXHIBIT #5 STATEMENT OF CHRIS CHRISTODOULOU DATED 15/11/2017 PN702

EXHIBIT #6 STATEMENT OF CHRIS CHRISTODOULOU DATED 08/12/2017 PN702

CROSS-EXAMINATION BY MR HARDING................................................. PN706

EXHIBIT #7 AUSTRALIAN GOVERNMENT DEPARTMENT OF SOCIAL SERVICES, OPERATIONAL GUIDELINES DISABILITY EMPLOYMENT ASSISTANCE DATED OCTOBER 2016.................................................................................................... PN799

EXHIBIT #8 LETTER ADDRESSED TO THE COMMISSION FROM CATHERINE CAMPBELL, AUSTRALIAN GOVERNMENT DEPARTMENT OF SOCIAL SERVICES DATED 08/11/2017................................................................................................ PN803

THE WITNESS WITHDREW............................................................................ PN952

CHRIS CHISTODOULOU, RECALLED......................................................... PN952

CROSS-EXAMINATION BY MR HARDING, CONTINUING.................... PN952

THE WITNESS WITHDREW.......................................................................... PN1228

CHRIS CHISTODOULOU, RECALLED....................................................... PN1230

CROSS-EXAMINATION BY MR HARDING, CONTINUING.................. PN1230

CROSS-EXAMINATION BY MR BULL........................................................ PN1267

RE-EXAMINATION BY MR ZEVARI........................................................... PN1313

THE WITNESS WITHDREW.......................................................................... PN1326

ROBERT GRAHAM MACFARLANE, AFFIRMED................................... PN1335

EXAMINATION-IN-CHIEF BY MR HARDING.......................................... PN1335

EXHIBIT #9 STATEMENT OF ROBERT MACFARLANE DATED 21/11/2017 PLUS ATTACHMENTS............................................................................................... PN1347

CROSS-EXAMINATION BY MR WARD...................................................... PN1347

EXHIBIT #10 DISABILITY EMPLOYMENT SERVICES SUPPORTED WAGE SYSTEM HANDBOOK JULY 2017................................................................................... PN1437

EXHIBIT #11 DISABILITY EMPLOYMENT SERVICES NATIONAL PANEL OF ASSESSORS INDUSTRY INFORMATION PAPER DATED AUGUST 2017 PN1462

CROSS-EXAMINATION BY MR STROPPIANA........................................ PN1723

EXHIBIT #12 DOCUMENT ENTITLED "SUBMISSION TO FACHSIA'S HUMAN RIGHTS COMMISSION APPLICATION FOR TEMPORARY EXEMPTIONS UNDER THE DDA 1992" AUTHORED BY MR ROBERT MACFARLANE............................. PN1736

CROSS-EXAMINATION BY MR CHRISTODOULOU............................... PN1880

CROSS-EXAMINATION BY MS WALSH..................................................... PN1905

THE WITNESS WITHDREW.......................................................................... PN1936