PN1

THE DEPUTY PRESIDENT: Welcome to a joint listing at this stage of AM2013/30 and AM2014/286. I am going to take appearances and I want to ask each of you to go around the room, perhaps starting with Roy and just say your name and your organisation and sort of linger over it a little bit so that the monitor can catch you.

PN2

MR ROGERS: My name is Roy Rogers, I am the CEO of the Flagstaff Group.

PN3

MR KIRKHAM: Good morning, my name is Rob Kirkham, I am the CEO of Access Industries for the Disabled Limited.

PN4

MS WALSH: My name is Mary Walsh and I am representing families and carers in relation to the new modernisation.

PN5

MS FREELAND: Rowena Freeland, assistant director Payment Scheme and Supported Employment Policy in the Department of Social Services.

PN6

MR KEMP: James Kemp, director of Payment Scheme and Supported Employment Policy, Department of Social Services.

PN7

MS WILSON: Kairsty Wilson, AED Legal Centre.

PN8

MS SVENDSEN: Leigh Svendsen, senior national industrial officer Health Services Union. I am also appearing on behalf of United Voice for Michael Robson today while Stephen Bull is on leave.

PN9

MS MOONEY: Louise Mooney, Disability Services Australia.

PN10

MR CHRISTODOULOU: Chris Christodoulou, CEO of Greenacres Disability Services.

PN11

MS LANGFORD: Kerry Langford, National Disability Services and I am the national employment manager.

PN12

MS CHAN: Margaret Chan, lawyer of Australian Business Lawyers and Advisors on behalf of Australian Business Industrial in the NSW Business Chamber.

PN13

THE DEPUTY PRESIDENT: Thank you very much everybody. I am just going to put a bit of history of this matter on the record because it would otherwise to the uninitiated reader of the transcript, since the transcript is posted on the web in these matters, perhaps appears somewhat uncertain as to how we came to be here today. What I will do is I will say what I think and then I will ask anybody to make any comments in terms of amending what I have got to say, that is correcting and/or enhancing.

PN14

We have co-listed two matters today - AM2013/30 and AM2014/286. AM2013/30 is an application to vary the support of Employment Services Award. It was lodged on 16 December 2013 by United Voice and the Health Services Union and the effect of that application, in summary, was to remove all wage assessment tools in the Supported Employment Services Award other than the supported wage system. Is that correct, system or scheme?

PN15

MS SVENDSEN: In actual fact it was to remove a bit of an "either/or". First, it is "what" and, secondly, either parts of the - and I've just gone on hold - "over-competency component of any wage assessment tool or the tool itself", so it was an "either/or".

PN16

THE DEPUTY PRESIDENT: Thank you, Leigh, very much. Feel free anybody else to leap in and correct, it is probably a good idea to do that as we're going on and then the reader can get the complete picture.

PN17

That application was referred by the President to a Full Bench, that was constituted on 4 February 2014 and from time elapsed between that Full Bench being constituted and the Full Bench bringing the matter on for hearing and, without going into the detail, that delay was at the request of the parties because there were Human Rights Commission deliberations occurring in relation to the Business Services Wage Assessment Tool, otherwise known as the BSWAT (the acronym BSWAT).

PN18

It was heard on 20 June and in the course of the hearing the providing member, Vice President Watson delegated conciliation to me and that commenced a process of very many conciliation sessions over the period 20 June 2014 - in fact the first one I think was in September - through to where we are today on 10 April 2017.

PN19

The period of time has also been filled not just by conciliation sessions in the Commission but also with quite a lot of extensive and intensive (at the same time) field activity that has been conducted at the direction of joint party groups - small groups - and funded by the Federal Government and that activity has all been to the end of assessing what would be an appropriate modification to the supported wage system that could provide the opportunity for the conciliation parties to come to an agreement about how wages should be assessed for people with disability working in Australian Disability Enterprises.

PN20

Some progress has been reached and that is represented by an agreement in principle subject to still some outstanding issues but broadly an agreement in principle to vary the Supported Employment Services Award to replace the standard form Supported Wage System with the modifications of the Supported Wage System for application only in ADEs as an option for ADEs to select from amongst a range of other tools that remain in the Supported Employment Services Award (SESA).

PN21

There are two outstanding issues, which I won't go into now, because they will no doubt be ventilated around the table today and they are issues that are not to go into the award but are to be incorporated in the Federal Government guidelines that govern the operation of the SWS (Supported Wage System) and feedback is to be given by the parties to the Federal Government in due course, maybe some of it even today.

PN22

On the last occasion that we met I undertook to speak to Ross J about the technical aspects of the SESA being varied and he has come back to me as late actually as Saturday - Ross J neither sleeps nor has a weekend ever it would seem to all of us - and he said that he has directed that the variation would have to be dealt with under AM2014/286, that is the review, a four-yearly review of the Modern Award and that is because the Full Bench as constituted of course has now lost its presiding member and therefore rather than reconstitute that Full Bench for the purposes of hearing the SESA he believes it is more effective and efficient to simply take in any agreements that the parties reach - this and of course others, hopefully into the variation of the award under the award modernisation process.

PN23

The balance of the claim contained in the application that Leigh has just spoken about is able to be prosecuted via AM2014/286, there is no doubt about that and that is clearly in the material that United Voice and HSU have provided to the Commission for their claims in relation to the award modernisation process and I understand that that is the applicant's preferred course. You will tell me otherwise, Leigh, if I have got that wrong.

PN24

I would like to deal right now actually, I think it would be handy just to deal with that question and therefore what happens to AM2013/30. It would be my preference for tidiness's sake, but I can be suggested otherwise, that we decouple the two files now and from the next two sessions that we have coming up on 21 and 24 April that they be simply AM2014/286 and everything that anyone wants to say about the SESA is dealt with in those matters and I think that would probably mean that the AM2013/30 file would close but obviously I am in the applicant's hands to some extent in relation to that and if you wanted to do something different to what I wanted to do then obviously I wouldn't just make a decision about it, I would hear you on it.

PN25

MS SVENDSEN: I don't think there is any problem with that. I think that - I just need to confirm here with you that if we feel likeminded the matter gets relevant to this.

PN26

THE DEPUTY PRESIDENT: Yes. Could I request then that after proceedings today that you do confer with United Voice and that you write to myself and copy the rest of the conciliation parties in and we will post on the website in relation to 2013/30 what your preference is and if it is uncontroversial and straightforward then we will just proceed in that way and then the next time we meet we will obviously be talking about the same subject matter but under a different file number.

PN27

We do only have two further sessions left and I should say again for the sake of the transcript that at least since some time last year - I don't have the dates at hand but probably September/October or something like that - we have co-listed the award modernisation matter and the fact of those listings has been on the website, in fact I think it might have even been as far back as July that we actually had, in a sense, the official opening conciliation session for the award modernisation.

PN28

I say that because, of course, as everybody around this table is now thoroughly educated about, the four-yearly review of the awards is an open process and one which anyone for that matter who just happens to be walking down William Street and feels like popping in to the Commission to have a view about the award is able to participate in, so the listing is always on the website; the website is public and if people want to come along they can. As it happens, we haven't had anyone come - at least so far - who wasn't also involved in AM2013/30 so there has been somewhat of a conflation of the two - well, there has been a complete conflation of the two subject matters even though the two files are technically separate files.

PN29

But from now on, if we get communication of the kind we expect from the HSU and United Voice then we would proceed with the AM2014/286 on its own and we only have two further full days listed for that, so that if that turns out to be insufficient and the parties feel that further listings would advance the likelihood of agreement, bearing in mind that there is quite a few other things in the award than wage assessment tools and some of those things are things that parties want to advance then I would have to speak to Ross J because his Full Bench timetable is out of my hands; he may wish to program for arbitration. Leigh, you are the expert, you are our subject matter expert on award modernisation at this table so you know how this happens.

PN30

MS SVENDSEN: We won't be getting arb in this matter until the beginning of next year would be my guess on the basis of they are matters that - and we haven't filed anything except a very vague outline of an indication of the things that we are wanting, not including the conference information that has been provided today, so on the basis of other matters which we have got to - although I must admit we haven't done substantive - Margaret also knows this: we haven't got substantive submissions for SCHADS or aged care, we have only got a more detailed outline still and they're not listed yet and we have still got Group 2 matters that are unlisted, substantive matters that are unlisted and the other two major awards in the Group 4, that this one is one of, have been identified as part of the prime language process, I haven't yet slashed my wrists. So, I can't see this happening until next year.

PN31

THE DEPUTY PRESIDENT: Margaret, do you have any comments on that?

PN32

MS CHAN: No, I would concur with that view, particularly given health professionals has only been listed for November dates recently.

PN33

MS SVENDSEN: But they're in Group 2 award that kind of - that fit in the health and welfare sector.

PN34

THE DEPUTY PRESIDENT: So, if that is the case - and obviously I would check in with Ross J's Chambers and the award modernisation team who are managing this whole process - but it would seem to me that it would be worthwhile then if we feel we do need more time for the parties to signal that and for us to program it, because if it is not going to be arbitrated then more efforts towards reaching agreement, even if it is only on relatively small items and the award seems to be worthwhile, so I'm certainly open to conciliating further but, as far as I'm aware - tell me if I'm wrong - and, Grace, you are our holder of the keys in relation to this - 21 and 24 April are the two next sessions that are listed.

PN35

MS SVENDSEN: Unless there is some substantial - I mean we haven't got to the ones that we have identified yet and the summary is deficient in terms of what substantive matters are actually identified, I think we would have to get fairly quickly to the pointy end of putting in substantive outline at least to then see if we need to come back to the table.

PN36

In relation to spending more time in conference, I don't really have that much more, because I have got too many other matters and plain language is going to have us - I mean I have no doubt that we will be subjecting those two awards to plain language process in some shape or form and either there is going to be a push on to finish the substantive matters - with luck - before we then apply plain language to those awards, that is going to have us all in some significant conflict in terms of timing as it is, so it is going to be somewhat difficult to accommodate a lot more, so depending on how we go today.

PN37

THE DEPUTY PRESIDENT: Let's cross that bridge when we come to it, anyway.

PN38

MS SVENDSEN: Yes, that's right.

PN39

THE DEPUTY PRESIDENT: So we have got the rest of today plus two other full days which brings me to today's timetable. I need to take a 1.00 to 2.00 pm lunchbreak for domestic reasons, my daughter is needing some assistance, and I have got another matter listed at 4 o'clock which will go until the wee smalls of the night, I believe. As I said to you this morning, we have had some activity - allegedly, I hasten to add, in case anybody from that matter picks up this transcript - out at Port Botany by way of a community protest that appeared to inhibit some employees from starting their shift as scheduled, at least that is what is said in the application, so I must leave, I guess, at five to four to move to another court room to get that started. But aside from that, it is only 10.36 and we have got the best part of the day ahead of us.

PN40

I thought the next most sensible thing to do, because I do like to do a bit of a stocktake and that is why I asked everyone to do that summary of issues because it will be handy to make a list of the things that people want to talk about and then we can decide the order in which we do that and then, of course, if other matters arise during that conversation they of course may be added to the list or if some matters fall away as part of that conversation they may be removed from the list but at least we will know what we are doing and that means if you need a little moment for reflection I am happy to provide it, but what I would really quite like to do is kind of go around the room and identify - and it might be just in terms of - there is no applicants, there is no respondents when it comes to the Modern Award Review, so it doesn't matter where we begin and Margaret is sitting next to me so I kind of imagined I might begin with Margaret, if you're ready and it is really to place on the transcript as succinctly as possible but with enough meat so that the reader can understand what changes does your organisation seek to be made to the award; what is the motivation behind those changes.

PN41

MS CHAN: Our clients, ABI and the NSW Business Chamber, in essence, have at least six claims that we are intending to pursue. There are a number that are actually listed on the summary of proposed substantive variations dated 6 January 2017 which I don't appear to have clear instructions on at this point, so I will endeavour to come back to the parties as soon as I can on those matters. But of the matters which we are prepared to progress today, as I have mentioned, there are six - three of those relate to wage assessment tool matters and that is in relation to the insertion of new - sorry - references to new versions of those assessment tools such as things like the modified SWS, that is the modified SWS tool.

PN42

Also, potentially looking at inserting our client ABI's proposed wage assessment tool as an alternative to some of the wage assessment tools that currently exist at clause 14.4 of the award and as a consequential amendment to that, the actual insertion of the text of the tool itself at Schedule I.

PN43

The other claims which don't relate to wage assessment tool matters relate to the coverage of school-aged employees who might be engaged in casual employment at clause 4 of the award, so currently there is no clarity around whether these individuals would be covered. As a consequential amendment it may also be necessary to potentially look at our junior rate as a result of that.

PN44

The other matters relate to a variation of penalty rates at clause 20.3 to bring the policy rate for supported employees working in the retail and hospitality industry back in line with their peers who are engaged under the Retail and Hospitality Award and this is, I guess, to (a) ensure that there is some kind of parity and also, I guess, to also encourage the actual engagement of supported employees in these sectors as well, because I think that is in the interest that both employers in this sector and certainly both advocates for employees would want to see, so that is where that is coming from.

PN45

The final variation would be to clause 20.5 and that is just a variation that we are looking at to clarify the applicability of nightshift rates to employees where they are only working nightshift, as the award currently reads. It would appear that these nightshift rates would only apply where an employee was engaged on a rotating roster which incorporates nightshift. So those are the six variations that our clients ABI and the NSW Business Chamber are intending to pursue.

PN46

THE DEPUTY PRESIDENT: Thank you, Margaret. Just before we go on to Kerry, we are working nightshift only. With the insertion of the proposed wage assessment tool as an alternative to other tools, just to clear that, that contains - I gather that that is what you forwarded in line with my request for a summary and it is quite a sort of big proposal that involves classifications and percentages and whatnot.

PN47

MS CHAN: Yes, that would be correct, Deputy President. So, the draft determinations in relation to those matters have been prepared and they were filed with the Commission both on 4 October 2016 as part of some correspondence from my colleagues Mr Izzer(?) and Mr Mostafavi and it also again, as early or late, I might call it, as Friday/this morning as part of the summary requested by the Deputy President.

PN48

THE DEPUTY PRESIDENT: Thank you, Margaret. Over to you, Kerry.

PN49

MS LANGFORD: Thank you, Your Honour. Can I just note first of all that NDS last year actually did make a number of submissions and we actually had noted that they are not on the summary of proposed substantive variations and they are definitely sitting on the website, so we would just like that noted, please. I'm going to talk to those today just to refresh everyone's memory.

PN50

The first thing we would like to cover is the eligibility to use the Support Employment Services Award. I think people would be aware that as a source of funding for Australian Disability Enterprise's progressive for these shifts from the Department of Social Services to the National Disability Insurance Agency, it raises some concerns. It raises a question that the ongoing status of organisations funded under the Disability Services Act 1986 to provide supportive employment services, so we just want to ensure that the new award includes ongoing recognition of these organisations' right to continue to use the SES award even though the government-funding arrangements and the eligibility and access criteria for support employees may change due to the introduction of the National Disability Insurance Scheme. That is the first one.

PN51

The second that we would like to put on record again is around the definition of eligibility in terms of supported employees. We would like to see that the same definition is actually used as a definition of "supported employer" in the award, that is the definition that is actually defined under section 7 of the Disability Services Act.

PN52

The third issue that we would like to put on record is around superannuation and the proposed changes to superannuation. Our members are of concern that this could cause undue pressure on support employer enterprises or Australian Disability Enterprises.

PN53

THE DEPUTY PRESIDENT: Is that a response to somebody's else's proposed claim, Kerry?

PN54

MS LANGFORD: That is, yes. I think it was United Voice put in a claim.

PN55

THE DEPUTY PRESIDENT: It is really a capacity to pay.

PN56

MS LANGFORD: The capacity to pay, yes. And those would be the three issues, Your Honour.

PN57

THE DEPUTY PRESIDENT: In terms of the summary of proposed variations, that has produced - as I think you know by the AMOD (short for "award modernisation") team, so perhaps what I will do is just give them a call and say could they reconcile their document against the web because it would be handy to have a new version document.

PN58

MS SVENDSEN: Your Honour, it is probably worth us all having a quick squiz at the summary and seeing if anything that we have ourselves made on it will accurately reflect it, because we haven't - and then write a note to the same effect, which is what happens standardly in the other matters, but we haven't really been following those matters in the same way as we have in other four-year review proceedings, so it is probably worth looking back at that. I have only done it with the technical and drafting matters myself and, yes, it is probably worth us all just having a look. It doesn't matter if you have got clients that are not yet there then we could probably make a - ask you for some directions to file at least an outline of anything that we still want to do in relation to this award and then get that summary updated completely.

PN59

THE DEPUTY PRESIDENT: Yes, I'm sure it would help AMOD if the parties were willing rather than me simply asking them to do the work of trawling through all the submissions and reconciling it against the list. If everyone could look at the list - and in a moment we will make sure that we have all got the same list - and then write to me with the exact redescription or addition that you would want to appear and then we can send all of that to the AMOD team at my request. I think they probably wouldn't want to receive things directly just because they have probably got quite a lot of things and that would cause things to fall between the cracks.

PN60

What I have got here is - it is updated as at 24 February 2016 and it has got red writing on it and I see Margaret's is probably the same one and she has got black and white but it is faded, so I would suggest that it is red. So that I think is what is on the web but just for everyone's convenience if we could just pick that off the web as a document and send it to everybody.

PN61

MS CHAN: Yes.

PN62

THE DEPUTY PRESIDENT: And then we will do that perhaps with - rather than issuing you with formal directions, if it is all right we will just send it to you with an email saying "Please send us back anything that you want added or changed in this document by X date", we will get all that back in and then shoot it all straight off to AMOD. Chris, do you have something independent of - - -

PN63

MR CHRISTODOULOU: Yes, I do. Our major interest is, of course, where this matter heads to in terms of wage assessment. I have already sent two pieces of correspondence to the Commission, one dated 21st of the third, which was our response to the work done at that time with the modified supported wage system and the second being on 31 March in relation to that same issue and reserving our rights with respect to these proceedings in terms of wage assessment, if there could be no consensus reached for a unified wage assessment tool.

PN64

We have over 50 organisations that use the Greenacres' tool at the moment. It is our intention that we would be reviewing a Greenacres' tool from when it first went into the award. In fact we have actually already modified it slightly with respect to the tool that Greenacres itself uses in terms of our EBA but we think there are further modifications that we would like to make and some maybe quite substantive. To the extent that we would make those modifications, of course we would need to consult with all those employees using our tool because therefore if the tool is still referred to in the award then it would be a new instrument rather than the instrument that was there when it first was put into the award.

PN65

The second issue is we may also take an approach - and subject to further consultation with ABL and NDS, it may be there is further modifications that we ought be agitating with respect to the MSWS even though the Commonwealth may not necessarily accept those modifications but that is a matter if we can come up with something that we believe would be workable for employees and we could convince the Commission of the merits of that then that may be another alternative. Save and except those two positions we are also very supportive of ABL's proposed assessment structure as a further option that ought be considered.

PN66

So, we think we have got work to do and the extent that we can be in the position that we can agitate for an option or a range of options if this matter was to go to arbitration we certainly would be willing to put some proposals on the table.

PN67

THE DEPUTY PRESIDENT: Thank you, Chris, very much.

PN68

MS MOONEY: We have nothing, Commissioner.

PN69

THE DEPUTY PRESIDENT: Nothing from you, all right. Leigh?

PN70

MS SVENDSEN: I have nothing at this stage.

PN71

THE DEPUTY PRESIDENT: When you say you have got nothing, you have got lots of changes sought.

PN72

MS SVENDSEN: You mean as in nothing further?

PN73

THE DEPUTY PRESIDENT: I sort of wanted you, if you wouldn't mind, just for the sake of completeness of actually just dot pointing those things you do want to advance. I know you have already - - -

PN74

MS SVENDSEN: The application in relation to - our position in relation to wage assessment tools hasn't changed and will be prosecuted; that the only wage assessment tools that are appropriate are those that are productivity-based without any other mechanisms contained within them in any format.

PN75

The only other claim that we have in relation to this award at the moment is a very minor one in relation to updating the ceremonial leave clause to be appropriately worded in relation to Aboriginal and Torres Strait Islander employees.

PN76

THE DEPUTY PRESIDENT: Is that likely to be an uncontroversial one, just as a matter of interest?

PN77

MS SVENDSEN: It has been uncontroversial in all awards but the Medical Practitioners Award and that went through fairly easily anyway.

PN78

THE DEPUTY PRESIDENT: Is it a definition?

PN79

MS SVENDSEN: No, the ceremonial leave clause is the provision for 10 days unpaid leave. In most of the awards it is actually only Aboriginal and our application is to include Torres Strait Islanders.

PN80

THE DEPUTY PRESIDENT: That might be one that we find we can move through fairly - - -

PN81

MR SVENDSEN: NATSIHWA (which is the Aboriginal Healthworkers Association) have actually got a slightly different wording that they put forward in the Aboriginal Community Controlled Health Services Award which - I'm not sure that it makes any difference but it actually spells out more about what ceremonial leave might entail. I don't think that we will make an application to vary it today, but alluding to that has been fairly standard and the provisions in the Aboriginal Controlled Community Health Services Award will go through though.

PN82

THE DEPUTY PRESIDENT: Do you happen to know whether United Voice says any other matters that it wants to raise?

PN83

MS SVENDSEN: My understanding is there are - and that was that along with the matters that I knew NDS had was my comment earlier about the summary not being quite accurate, but I also hadn't really looked at it. I'll be honest, I've kind of not - we have been engaged in other parts of this process, so I hadn't really looked at the summary of substantive matters either, I just was conscious that it was missing a few things.

PN84

I think one of those was one that Kerry just alluded to in relation to the payment of superannuation for all employees and which would be removing the minimum that is currently embedded in the standard clause of $450 per month. I think it's $450 per month, it might be a little bit more than that now, I can't actually remember. But I can't actually recall anything else.

PN85

MR CHRISTODOULOU: I might just clarify that. I think from memory there is a minimum provision that notwithstanding the $450 the people with disabilities receive, I think it's $6 a week superannuation contribution and I think United Voice's claim is that it be $15 per week.

PN86

THE DEPUTY PRESIDENT: So we should pick that up when we write to everybody and say "Here's the current summary, please tell us what you want added or changed to that" and we would expect United Voice to take note of that and come back with some clarification there. Kairsty?

PN87

MS WILSON: I speak also for inclusion of Australia and PWDA in relation to - and basically what we would like to see them forwarded or progressed and, if necessary, prosecuted to remove all tools that - basically what Leigh said in relation to all assessment tools in the award that contain any confidency components as of reissue of the wages. Just in relation to this audit wage we would like to see, obviously, the variation to the supported wage go through with what we talked about last week. I think there does need to have the inevitable award discussion in regards to particularly the 50/50 element of the tool.

PN88

THE DEPUTY PRESIDENT: What is the guideline issues?

PN89

MS WILSON: I don't know if that is the guidelines but it is also in relation to the actual D1.4.1 (a) and (b).

PN90

THE DEPUTY PRESIDENT: I was wrong before when I said that there wasn't anything that relates to the variation about that, I had forgotten about that.

PN91

MS WILSON: Yes, I guess that certainly they are for guidelines but it is actually the wording that would go into the award as well that I think needs to be looked at and we would support Health Services Union in regards to the ceremonial leave clause and also the superannuation.

PN92

THE DEPUTY PRESIDENT: Yes. I realise that my notes are sort of now converted given that we are on transcript for my own aide memoire, but I think it is good practice because we have been using these notes to follow the other applications for me to show them to you and I am grateful for your suggestions.

PN93

James, anything from the Commonwealth?

PN94

MR KEMP: The only thing from the Commonwealth is the proposal we put forward around the SWS modifications, so amendments to 14.4 and the inclusion of Appendix D1 to Schedule D of the award.

PN95

THE DEPUTY PRESIDENT: We know, obviously, James speaks for both of you, Mary and Mary Lou?

PN96

MS WALSH: From a parent family carer perspective, we would certainly want to prosecute our own issues in relation to, I guess, getting rid of all the other tools, which was part of the original application.

PN97

THE DEPUTY PRESIDENT: You have got a view about - - -

PN98

MS WALSH: We have a strong view about that because should our productivity-based only tool be the only tool available our concerns from the family perspective is that individual percentile productivity could become the determination and would allow someone an entry to an ADE. ADEs are not for profits, so our position is well known there.

PN99

The other one is the capacity of an ADE to pay, which has already been raised, and in relation to the award itself the legislation classes - it is built around that particular part, people with a disability, and an assumption that people with a disability have parents and guardians that can actually assist with decision making. That is not the fact and we would like to think that that could come up for discussion from heads far wiser than ours as to how we may include that in the Modern Award.

PN100

THE DEPUTY PRESIDENT: Do you have at this stage a particular proposal to put about that? I'm not saying you have to, because it has been a fairly complex issue, but if you did it would be worth mentioning.

PN101

MS WALSH: Well, we don't, but perhaps - and I think it crosses over into some of the variations that some of the people in conciliation have mentioned, is when you get rid of competency there is an assumption that everyone can do whatever it is they can do and then you come back to different levels.

PN102

So, honestly, we haven't put a case together about that but we certainly believe that the Modern Award should address the difference between mild disability and people with intellectual disability who have moderate to severe needs because that is a support issue, that is a cost issue but it is a critical issue for those workers and people who do want to work in an ADE.

PN103

The other issues we have covered with the variations, with the exception of the proposed draft changes put forward by the Commonwealth, that would on paper give service providers an option as to whether or not and what type of internal data they keep for assessments. So the issues with the proposed insertion of NSWS we have raised our concerns about that.

PN104

THE DEPUTY PRESIDENT: Rob and Roy, do you have anything in addition to your employer organisations that you want to put forward for specific change to the award?

PN105

MR ROGERS: Not from me. I'm represented by ABI and NDS, yes, both, that's right, we're members of both. I just want to make sure that I'm here really - my major interest is just to make sure that people with disabilities don't lose an option for employment and all ADEs become unsustainable and unable to pay.

PN106

MR KIRKHAM: Deputy President, I also represent AID and I have nothing further to add.

PN107

THE DEPUTY PRESIDENT: I wonder whether we need to kind of progress on the thing that is the one obstacle to everyone saying "Yes, we agree to vary the award to insert modified SWS in lieu of the other standard form, SWS" and that appears to be the waitings question. If we could spend some time going over the concerns there and seeing what the alternatives were, if we could put all that to be then that would be one agreed variation that we can just log and then move on to the others then I think we will have to think about do we deal with the sort of small things first, the low hanging fruit, or do we dive straight in and tackle the other wages tools and how best we might we do that.

PN108

But perhaps one thing at a time. What do you think about now looking at the waitings question, because I know James sent some material to everybody after our last session that just pointed out that it had been ventilated at the small group and he wondered whether that would influence where you could land as a larger group. I see Kairsty is nodding her - well, shaking her head, I should say, and so for the record you are shaking your head and saying no, you don't, which means that we need to have a full discussion of it, if it is to be an agreed outcome. Of course the possibility exists if we exhaust ourselves and can't land it that we have still got a largely agreed proposition just with an element that is outstanding that you would leave for the Full Bench to make a decision about.

PN109

Actually, no, you wouldn't, now that I'm talking and thinking at the same time, you would actually have to leave it to the Commonwealth although it would undoubtedly - it would inhibit it being considered to be wholly agreed, so in that sense there would be somewhat - there would be a sequencing to it. So the Commonwealth would make a decision about what the guidelines should look like then the parties would say "Given the Commonwealth has made a decision, what do we think?" and then if that wasn't agreed the Full Bench would still then be in a position to arbitrate it if the Commonwealth and some parties around the table wanted to press it as a variation. I think that is the sequence of events.

PN110

Clearly it is ideal if it can be agreed and I know James' and Rowena's efforts in communication have been to that end, so what do we say about it in terms of its merits? It is specifically the 50 per cent, yes.

PN111

MS LANGFORD: Your Honour, I am just aware that Margaret hasn't received the document. We are just trying to find some notes.

PN112

THE DEPUTY PRESIDENT: All right. Do we want to have a little break then? That might be a good idea. It is 11 o'clock, we have been beavering away now for about 40 or 50 minutes. Mary?

PN113

MS WALSH: I have a question, Your Honour, and that is my understanding with the trial was that it was 50/50. If that is a matter of contention I just wondered if the other parties had a suggested percentage that was different to the 50/50 so that we know where we're coming from.

PN114

THE DEPUTY PRESIDENT: More an approach, yes.

PN115

MS WILSON: My understanding was that, yes, it was agreed to for the trial but the trial only and I have spoken to Paul Kane about it because that was basically the first we heard about it last week and Paul said it was agreed for the trial; there was certainly no agreement beforehand that the small group had the authority to make those sort of decisions without it coming back to the group for further discussion, so that is my concern, that it has basically been what has been discussed in the small group and has been agreed to for the trial but not ongoing.

PN116

So, yes, we have had a lot of discussions about it in the last week and looking at proposals. I guess the concern is that this process, the SWS is meant to be independent. If it is 50/50 it is no longer independent, it is basically the external assessor, only 50 per cent of what the time is that they come up with are taken into account. The other 50 per cent are done by the ADE, okay. So, you have lost that independence which is also you have lost that transparency, that's the way it looks at it, okay.

PN117

So what we were trying to do is come up with a way, because taking into account that Kerry said last week that clearly if it is not 50/50 they won't agree, so we are trying to look at a way of compromising so that, yes, it may be 50/50 but how can we then, if there is - we then look at talking about the assessment and the ADE, look at the two results and they try and work out whether there is still inconsistency. Don't forget that with the timings the assessor might have a range of timings as well, depending on when they assess them; the ADE may also have a range. If there is common within that range, say the ADE has 45 but it is all around that sort of - but then the external assessor might have one timing at 45 but the rest up at 60, there may be some way of working it out.

PN118

I guess what we want to look at is a way of putting it into the award that if there is inconsistency and they can't - the validity of that process, that there be a way that perhaps the assessor can then take extra timings and then go through our process of - that there be a process written into the award so that if there is disagreement that there is a process to follow and that if there is, that the external assessor is the one that can then say "All right, there's inconsistency here, we need more times" and what we proposed was up to three hours, we weren't dictating that it had to be three hours, we just thought if it was up to three hours of extra timings that the assessor could take and that, again, there are processes under the SWS now that if there is disagreement that they can ask for a review assessment. They can actually have two review assessments.

PN119

So that there needs to be a process. If it is going to be 50/50 it also needs to be written into the award the processes followed if there is not agreement reached.

PN120

MS WALSH: I guess that is a matter for the service providers to consider that. I guess from our perspective, as you will note, we are very keen and in fact quite adamant that if it is at all possible and that it doesn't impose service providers with a huge lot of red tape that there is appropriate internal data collected on each of those employees and I guess if you are looking at it - and we know from history the issues we have had with external assessors, particularly not necessarily in the cities but certainly Australia-wide - the assessment processes we have had may be independent in some ways but they haven't been probably up to the standard that we would like to think. Now we can't control that but whatever is determined between yourselves and the service providers, family as parents' carers and the workers whom we represent would certainly want to see that the service providers were given equal rating with an external independent assessor because in the end they know their employees much better than anybody. I agree with the accountability, I agree with the transparency but it is a matter that we would like to take a monitoring role over in relation to whatever it is you both agree on.

PN121

MR CHRISTODOULOU: Just on that, whatever the process happens to be, Kairsty, that you come up with, ultimately I think from both the employees' point of view and the employers' point of view ultimately if there is still a dispute in that process, i.e. the employee doesn't think the outcome is good for them or the employer thinks the outcome is not correct then ultimately that process needs to lead back to the rights of both of those parties to come back to this Commission, like any other dispute. So, whatever we come up with that ultimately needs to be where a dispute lands and then this Commission would obviously then determine everything on its merits based on the assessments that were made, material provided by the employer or the various independent assessors.

PN122

MS WILSON: That is how we would look at it, too, that the process would end up here but there needs to be written into it what the process is. We also need to ensure that the internal data is done in the same way that the external data is collected in that there are timings but there are benchmarks - all of those things. And I guess this is where our concern is, that unless that process is followed - and until it is rolled out and if ADEs are going to accept it, I mean obviously there is going to be a process that needs to occur for the internal data to be collected and that is a really important part of what we are saying, is that the benchmarks need to be there, there needs to be a pro forma that is where the internal data is collected but there also has to be a process and it needs to be written into the award. If it is going to be 50/50 then it needs a process of where there is disagreement and that the external assessor needs to have to basically work out - you know, to say, "Right, we need more timings", or, "This is not going to agree.

PN123

MS LANGFORD: I actually do agree with that. We do want to see it 50/50, and primarily I think I understand what you're saying about it being an external and an independent assessment, but the mechanism needs to be built in so that there is an appeals process. I agree totally there actually has to be really clear guidelines. I think both parties actually - and I'm looking at the department here, that adequate training has to be provided to both internal and external people undertaking assessments, and I think a pro forma or something like that to be made available is a very positive way to go forward.

PN124

MS SVENDSEN: I'm just thinking that there are dispute provisions within the award, clearly, but we're actually talking about within this clause. I think probably a stepped process about kind of the first steps. Now, whether that becomes part of the award or whether it becomes part of the guidelines I'm not actually saying, but that if you actually have a stepped process in relation to - say within the guidelines at this stage, but not necessarily. If you have a stepped process in there about, "These are the first stages you go to. Failing this, then the dispute provisions of the award apply, which then brings it back here, ultimately."

PN125

What I'm really suggesting is that for this one, particularly in its implementation stages, there will be disputes, or potential disputes, arising in terms of understanding. So there might well be an implementation phase as well that provides for even more steps, but generally speaking, it's going to go along the lines of additional timings, or an agreement around collection of additional data, rather than anything else, and that's then a provision - that's then fairly easy to build into the guidelines about - than if there is such a marked difference that's not able to be explained.

PN126

Let's be clear, we know that a lot of the differences in workplace data and assessment data are actually explainable, and therefore the assessor and the workplace is probably going to reach agreement. So it's actually - just because there are differences doesn't mean that isn't going to be resolved fairly easily. It's going to be the ones where there is an unexplainable or unexplainable to one party's satisfaction a substantial difference. That's the one that's going to the issue, so that the collection of additional data is going to be the obvious first step, so that doesn't seem to be too hard to put in and to account for.

PN127

THE DEPUTY PRESIDENT: Can I just remind the parties, though, that the standard dispute resolution procedure in every modern award is one which does not allow for unilateral request for arbitration. So you need to remember that, and if the parties think that there needs to be that right, then it either needs to be a separate process, I would have thought, in the provision, or alternatively in the guidelines, because I don't imagine that the Full Bench would put a different dispute resolution provision into the SESA than the other modern awards.

PN128

MR CHRISTODOULOU: Yes, but I think there would be a really good argument in this particular case to allow for arbitration, otherwise I don't know then how you resolve the issue.

PN129

MS SVENDSEN: The provision does allow for arbitration ‑ ‑ ‑

PN130

MR CHRISTODOULOU: Does it?

PN131

MS SVENDSEN: ‑ ‑ ‑ because it allows for the Commission to undertake any of its dispute settling processes, but it's the ‑ ‑ ‑

PN132

THE DEPUTY PRESIDENT: By consent.

PN133

MS SVENDSEN: Actually, no, once it goes there it provides for - I'm just pulling it up to double‑check it, I must admit, but once it actually goes to the Commission the Commission is enabled by dint of the clause to use whatever methods are at its disposal, but I'm just ‑ ‑ ‑

PN134

THE DEPUTY PRESIDENT: There's a long and tortuous interpretation history there and there's a High Court decision, a CFMEU High Court decision, that distinguishes between the clauses that are in enterprise agreements that are considered to be private arbitration and the clauses that are in awards that are arbitrated clauses, but perhaps what you're saying, Leigh, and I'm not sure what the case law is on it, that if the Commission decides that it needs to resolve the matter by arbitration it can do so by the application of those standard award dispute resolution clauses, but my understanding was that if one party seeks arbitration and the other party is opposed to arbitration ‑ ‑ ‑

PN135

MS SVENDSEN: Yes, that's the bit, but it's the getting there in the first place.

PN136

THE DEPUTY PRESIDENT: Getting there in the first place is fine. Either party can refer the matters to the Commission, no question about that, but if you wanted to conclude the process by binding determination I think you'd need to have that spelt out.

PN137

MS CHAN: Leigh, if it helps, 9.3 of the award.

PN138

MS SVENDSEN: I was just looking for it. You're not looking at the exposure draft.

PN139

MS CHAN: No, I'm not, sorry.

PN140

MS SVENDSEN: Sorry, I am.

PN141

MS CHAN: Yes, all right.

PN142

THE DEPUTY PRESIDENT: But if the parties express a general desire for that to be an outcome then I think it's only a matter of technical drafting to achieve that result and the support of the Full Bench for its incorporation. It needn't be an inhibition to you expressing your agreement. I just wanted to bring that slight complexity to your attention.

PN143

MR KEMP: Your Honour, the Commonwealth has done some - we thought that this might have been an issue and so sought some advice about what we may be able to do, and this - we haven't circulated it, partly because we're not sure whether parties would agree anyway, but I can talk to that now in relation to the 50 per cent.

PN144

THE DEPUTY PRESIDENT: Why don't you?

PN145

MR KEMP: So what we thought, that basically amending the clause D1.4.1 that we circulated last week to state that where there wasn't any workplace data then the assessment would be just done in relation to the assessment data, but also that putting in some additional clauses which give effect to the fact that if there was a disparity between the workplace data and the data collected by the assessor of greater than 20 per cent, then a second assessment would be undertaken, and then if the second assessment resulted in an assessment of less than 20 per cent then the 50 per cent would be used.

PN146

Otherwise, and this is where it gets a bit tricky, what do you do if they're still greater than 20 per cent, but we could say something like, well, then just the assessor data would be taken into account. We did look at then, if parties didn't agree, could there be a possible dispute mechanism of referring things back to the Fair Work Commission to decide the matter. That was sort of the thinking that we had about how it would run.

PN147

THE DEPUTY PRESIDENT: Have you actually documented that?

PN148

MR KEMP: We do have a draft.

PN149

THE DEPUTY PRESIDENT: Would it be helpful for the parties to have a copy of that and have a bit of a look at it?

PN150

MR KEMP: It's in those two, Grace, and - get a copy if that's the way to do that.

PN151

THE DEPUTY PRESIDENT: Yes, I think that would be ‑ ‑ ‑

PN152

MR KEMP: We didn't want to do that beforehand just in ‑ ‑ ‑

PN153

THE DEPUTY PRESIDENT: Sure.

PN154

MR KEMP: If everyone agreed with the previous version then we were happy with that.

PN155

THE DEPUTY PRESIDENT: Would everyone like to have a look at that? We don't have to get locked into it. It's only for - just to try and bring us closer to agreement, but why don't we get that - James will send that to Grace now. Grace will go and print it and then perhaps we can just have a short break so people can read it and we can come back to the table and keep working on it.

PN156

MS FREELAND: Just to give everyone a little bit context to why we chose the 20 per cent variance, during the trials one of the things that Walter and Sharon provided through their training to the assessors and the ADEs that participated in the trial was that where they were taking timings and they noticed in between their individual timings that if there was a variance of greater than 20 per cent that would be a flag to say you probably need to take more timings to see if that variance remains and is a usual reflection of that supported employee's work performance or if it in fact changes through taking more timings.

PN157

So it's not to say that it's not possible to have a variance of greater than that, but that's sort of the reason that we chose that 20 per cent and parties might like to think whether or not that's appropriate to use that in this context.

PN158

THE DEPUTY PRESIDENT: All right. So I think James is busily working on - so hopefully the Fair Work Commission Wi-Fi is working well.

PN159

MR KEMP: I've got 4G so it should be ‑ ‑ ‑

PN160

THE DEPUTY PRESIDENT: Not willing to rely upon the Fair Work Commission Wi-Fi.

PN161

MR KEMP: We've got weird security that if ‑ ‑ ‑

PN162

THE DEPUTY PRESIDENT: Can this transcript be referred to the relevant ‑ ‑ ‑

PN163

MR KEMP: We've got weird security on the computer and if it thinks it's not secure enough, even if you can connect it it won't allow you to send it.

PN164

THE DEPUTY PRESIDENT: Fair enough. Grace, do we have any break‑out rooms? I know we had lots of discussion this morning about break‑out rooms. We don't actually have anything set aside, but if there ‑ ‑ ‑

PN165

THE ASSOCIATE: A and B.

PN166

THE DEPUTY PRESIDENT: If 14A and B are empty then feel free to go and pop in there and have a chat. So if we have a break, Mary and Mary Lou, will you stay with the ADE representatives?

PN167

MS WALSH: Yes.

PN168

THE DEPUTY PRESIDENT: Okay. So I'm just thinking to make good use of this time whether you wanted to - because I think the smaller group - I think just a group of two, actually, so if you wanted to - if everybody else wanted to stay in here and Kairsty and Leigh had their own break, then we could sort of start that now and you can discuss it amongst yourselves in principle and then when Grace brings the actual document you can be looking at it to see what changes you suggest.

PN169

Leigh and Kairsty might thank us for giving them an opportunity of going and getting a coffee, and if you'd like to have a private space I think we could - I'll go and see if 14C is open, and I can run around the back and open it if it isn't.

PN170

MS SVENDSEN: It's okay. It's fine.

PN171

MS WILSON: She wants a coffee.

PN172

THE DEPUTY PRESIDENT: Or you can just hang in the corridor.

PN173

MS SVENDSEN: I want a coffee.

PN174

THE DEPUTY PRESIDENT: Fair enough. All right. Why don't we break now?

PN175

MS SVENDSEN: I was in a conference from 9 o'clock and I'm still writing some stuff on ‑ ‑ ‑

PN176

THE DEPUTY PRESIDENT: Okay. Let's break now. It's half past 11, so do you think - I'd like you to do some really good work on this so that you come back with some firm proposals, so would half an hour be an appropriate amount of time? All right, So shall we come back at 12 noon?

PN177

MR KEMP: Sorry, Deputy President, when that's handed out it will be slightly different from last week. We've just done some tweakings as well, so rather than calling it the modified SWS, it's the ‑ ‑ ‑

PN178

MS FREELAND: Variations to the supported wage system.

PN179

MR KEMP: Wage system. Rather than modifications, just ‑ ‑ ‑

PN180

THE DEPUTY PRESIDENT: Okay.

PN181

SPEAKER: Variation sounds appropriate.

PN182

MR KEMP: Yes, and we've also included the 12.6 per cent which was agreed.

PN183

THE DEPUTY PRESIDENT: Excellent. Okay, thanks, James.

PN184

MS WILSON: Can we put on record - sorry, before you go - how you came to the 12.6 per cent?

PN185

THE DEPUTY PRESIDENT: James, can you pop the mic round to Kairsty?

PN186

MS WILSON: Sorry, can we just put on the record how they came to the 12.6 per cent.

PN187

THE DEPUTY PRESIDENT: Good idea. Who wants to do that?

PN188

MS WILSON: Thank you - well, not me, because I can't remember how they came to it, so I couldn't explain to ‑ ‑ ‑

PN189

THE DEPUTY PRESIDENT: James, do you know?

PN190

MR KEMP: I believe it was a proposal ‑ ‑ ‑

PN191

THE DEPUTY PRESIDENT: It's a mathematical formula.

PN192

MR KEMP: ‑ ‑ ‑ put forward by Chris, I think. It was an appropriate sort of ‑ ‑ ‑

PN193

THE DEPUTY PRESIDENT: It's when you divide the ‑ ‑ ‑

PN194

SPEAKER: Number of hours ‑ ‑ ‑

PN195

MR CHRISTODOULOU: Yes, well ‑ ‑ ‑

PN196

THE DEPUTY PRESIDENT: Yes, the 82 by 38 and then divide that ‑ ‑ ‑

PN197

MR CHRISTODOULOU: No, it wasn't. In fact ‑ ‑ ‑

PN198

MR KEMP: No, it was consistent ‑ ‑ ‑

PN199

THE DEPUTY PRESIDENT: No? Okay, sorry.

PN200

MR CHRISTODOULOU: In fact, the 12.6 came from Kerrie.

PN201

THE DEPUTY PRESIDENT: Yes.

PN202

MR CHRISTODOULOU: One of the proposals that we're looking at - in fact, the current, I think, Greenacres wage assessment tool that we're actually implementing at Greenacres, not the one that's in the award, the minimum there is around 12.5, but when Kerrie says that their formula came up with 12.6 ‑ ‑ ‑

PN203

MS LANGFORD: 12.6, yes.

PN204

MR CHRISTODOULOU: ‑ ‑ ‑ I said, "It's not a problem for me."

PN205

MS LANGFORD: So that was the $82 floor that sits currently within the SWS and then just simply divided by 38 and looking at what that came up as as an hourly rate, and then looking at where that sat within the minimum award.

PN206

MS SVENDSEN: So it was the hourly rate.

PN207

MS LANGFORD: And that was how we - it was a straight ‑ ‑ ‑

PN208

MS SVENDSEN: It was actually the hourly rate translated into a percentage figure.

PN209

MS LANGFORD: Correct.

PN210

MR CHRISTODOULOU: Yes.

PN211

MS LANGFORD: Yes, that's correct.

PN212

MS WILSON: That still doesn't - sorry, I'm dumb, but it doesn't explain it to me.

PN213

MS LANGFORD: Okay. It's just - literally all I've done ‑ ‑ ‑

PN214

MS WILSON: If it's 82 divided by 38 it does not come up - is not 2.6 per cent.

PN215

MS SVENDSEN: It's a dollar figure.

PN216

MS WILSON: 12.6 per cent.

PN217

MS SVENDSEN: It's a dollar figure.

PN218

MS LANGFORD: It's a dollar figure - comes up as a dollar figure.

PN219

MS SVENDSEN: Two dollars something.

PN220

MS WILSON: No ‑ ‑ ‑

PN221

MS LANGFORD: Yes, it's $2.62, which is then, when you start to look at the hourly rate of the minimum award, it is 12.6 per cent of what the minimum award is.

PN222

MR CHRISTODOULOU: Hourly rate.

PN223

MS LANGFORD: The hourly rate, yes.

PN224

MR CHRISTODOULOU: Of $17, whatever it is.

PN225

MS WILSON: 17 - you said something different.

PN226

MS LANGFORD: Do you want me to - I'll draw it up for you later.

PN227

THE DEPUTY PRESIDENT: Offline. Look, I think you've explained it well enough for transcript purposes, and then offline if Kerrie can just do some numbers to clarify that for Kairsty over the break.

PN228

MS LANGFORD: Yes.

PN229

MS WILSON: Yes.

PN230

THE DEPUTY PRESIDENT: All right. Back at 12 o'clock.

SHORT ADJOURNMENT�� [11.31 AM]

RESUMED�� [12.07 PM]

PN231

THE DEPUTY PRESIDENT: We've handed out a copy of the revised draft as suggested by the Commonwealth. It's not locked in stone but it's to help you actually respond and see whether there is an ability to make some changes that would cause the whole thing to be agreed. So do we want to just work through it? In fact, shall we just do that in a fairly - well, there's two different orderly ways we could do it. One is to go to people and they can say, "I don't like this and I don't like that", or, "I like this", or, "I want to add that", or we can sort of go chronologically through the document, starting with the front page, which is the sort of variation to the award and then the schedule. Which would you prefer?

PN232

MS CHAN: I think chronologically may make more sense.

PN233

THE DEPUTY PRESIDENT: Okay. Well, let's do that.

PN234

MS CHAN: Just to ensure any party ‑ ‑ ‑

PN235

THE DEPUTY PRESIDENT: Okay. So is 14.4, as far as the exposure draft, still 14.4?

PN236

MS CHAN: Probably not. Leigh, is the last version you have 20 December?

PN237

MS SVENDSEN: Yes, 16.

PN238

THE DEPUTY PRESIDENT: I have one 17 May. Okay, so you've got - that's the one on the website, 17 May. So is there in fact a more - yes, 17 May 2016. Is there a more up‑to‑date version?

PN239

MR CHRISTODOULOU: There's a new 14.4 here.

PN240

MS CHAN: Yes, that's the date it was first published and then it was republished on 20 December.

PN241

MS LANGFORD: Okay. So ‑ ‑ ‑

PN242

THE DEPUTY PRESIDENT: So did I just not see that?

PN243

MS CHAN: Is that in your footer?

PN244

MR CHRISTODOULOU: That's not right.

PN245

MS LANGFORD: No, it's not.

PN246

MS WILSON: It's 16.1 under the new ‑ ‑ ‑

PN247

THE DEPUTY PRESIDENT: I see, republished, 20 December 2016 in the footer, okay.

PN248

MS WILSON: Under the new exposure draft.

PN249

MR CHRISTODOULOU: There was an old ‑ ‑ ‑

PN250

THE DEPUTY PRESIDENT: Yes.

PN251

MS SVENDSEN: So 16.1.

PN252

MS LANGFORD: 16.1.

PN253

MR CHRISTODOULOU: Does that list all the other wage tools in that section, does it?

PN254

MS CHAN: Yes.

PN255

THE DEPUTY PRESIDENT: Yes, all right. So the provision is now 16 rather 14, but assuming that the sub‑clauses are still the same, 16.4 ‑ ‑ ‑

PN256

MS SVENDSEN: 16, wage assessment, employees with a disability, 16.1, an employee with a disability. So they've actually changed it from the As and Bs. So they've done it out. So A would read 16.1 and then the tools are listed at 16.2.

PN257

MS WILSON: What's that meant to be then?

PN258

MS SVENDSEN: 16.2.

PN259

MS WILSON: Right.

PN260

MS SVENDSEN: No, sorry, the relevant grade - no, it's not, sorry. Hold on. 15.2. The relevant grade is clause 15.2.

PN261

MS WALSH: 15.2?

PN262

MS SVENDSEN: Yes.

PN263

MS WALSH: Not 14.2?

PN264

THE DEPUTY PRESIDENT: So I guess ‑ ‑ ‑

PN265

MS SVENDSEN: As opposed to 14.2.

PN266

THE DEPUTY PRESIDENT: ‑ ‑ ‑ it's helpful to make those changes, but we need not get caught up with them, because they will be consequential, but the words:

PN267

An employee with a disability will be paid such percentage of the rate of pay of the relevant grade in clause 15.2 as assessed under an approved wage assessment tool chosen by a supported employment service.

PN268

Any comments on that?

PN269

MS SVENDSEN: That isn't a change.

PN270

MS CHAN: No, that isn't a change.

PN271

MR CHRISTODOULOU: That's the same as what's there now.

PN272

THE DEPUTY PRESIDENT: All right.

PN273

MS CHAN: A bit of cross‑referencing.

PN274

THE DEPUTY PRESIDENT: All right. Very good.

PN275

MS CHAN: Yes.

PN276

THE DEPUTY PRESIDENT: Okay. Then new 16.2:

PN277

For the purposes of this clause an approved wage assessment tool means and is limited to -

PN278

- and then is the intention - or that would be (a) rather than (i), presumably.

PN279

MR CHRISTODOULOU: Well, hold on ‑ ‑ ‑

PN280

MS SVENDSEN: No.

PN281

MR KEMP: No, it's (i).

PN282

THE DEPUTY PRESIDENT: I see. So it's ‑ ‑ ‑

PN283

MS SVENDSEN: Yes, it will be (a) under the ‑ ‑ ‑

PN284

MS CHAN: Under the exposure draft.

PN285

MS SVENDSEN: ‑ ‑ ‑ exposure draft.

PN286

THE DEPUTY PRESIDENT: Yes.

PN287

MS SVENDSEN: It's 16.2(a) under the exposure draft.

PN288

THE DEPUTY PRESIDENT: Yes.

PN289

MR CHRISTODOULOU: So that first set of words is not consistent with the exposure draft ‑ ‑ ‑

PN290

MS CHAN: No, it isn't.

PN291

MR CHRISTODOULOU: ‑ ‑ ‑ which talks about wage assessments as referred to, and they've taken the word - they've put in there "limited to" when it's not limited to, there's a choice of.

PN292

MS LANGFORD: Yes.

PN293

THE DEPUTY PRESIDENT: Remember we discussed this on the last occasion. James's intention in drafting this was to have all the other tools follow. It was just a question of putting the wording for the supported wage system as varied by appendix D1 to schedule D.

PN294

MS SVENDSEN: It's what's in the award right now, I'm sorry.

PN295

MS CHAN: Yes. So is it the intention to go to what's in the exposure draft or ‑ ‑ ‑

PN296

MR KEMP: Yes, we can do that.

PN297

MS SVENDSEN: "For the purposes of this clause" - this is reading out of the exposure draft.

PN298

MR CHRISTODOULOU: Yes.

PN299

MS SVENDSEN: "For the purposes of this clause an approved wage assessment tool means and is limited to."

PN300

MR CHRISTODOULOU: Yes, okay, sorry, you're right, and then all the other tools just aren't written there.

PN301

MS CHAN: That's right.

PN302

MS SVENDSEN: No, none of them are limited - no, it's only ‑ ‑ ‑

PN303

MR KEMP: That's why it's ‑ ‑ ‑

PN304

MR CHRISTODOULOU: Yes, okay.

PN305

MS SVENDSEN: That's why it's got the three dots below.

PN306

MR CHRISTODOULOU: Yes, fine.

PN307

THE DEPUTY PRESIDENT: Very subtle, those three dots.

PN308

MR KEMP: Yes, isn't it?

PN309

MS CHAN: Subtle dots. Yes, they're just sitting there. It's got them in bold, anyway.

PN310

MS LANGFORD: They're just sitting there.

PN311

MR CHRISTODOULOU: I can only just see it in this.

PN312

MS SVENDSEN: You wouldn't have an (a) or a (i) there if you were only having the one sub‑clause, you'd just continue the first sentence.

PN313

MR CHRISTODOULOU: True.

PN314

MS WILSON: It's actually what's meant to be anyway.

PN315

MS SVENDSEN: It's actually fairly obvious.

PN316

MS WILSON: So don't worry about it. That's correct. It is no (a), there's no (i). That's it. That's the proposal by the ‑ ‑ ‑

PN317

THE DEPUTY PRESIDENT: Yes, Kairsty. Now, the effect, therefore, of that proposal is to simply clarify that it's the supported wage system as varied by appendix D1 to schedule D, so we then go to appendix D1 to schedule D. Is that a different letter of the alphabet in the exposure draft?

PN318

MS CHAN: I hope not.

PN319

THE DEPUTY PRESIDENT: It would seem not.

PN320

MS SVENDSEN: It may well be, because there's been some moving of stuff around.

PN321

MS CHAN: No, there we go. Schedule D, supported wage system.

PN322

THE DEPUTY PRESIDENT: No, I think we're good. I think we're good.

PN323

MS SVENDSEN: No, the supported wage system is schedule D.

PN324

THE DEPUTY PRESIDENT: Yes, and of course we're not actually varying schedule D at all, we're adding schedule D1 and causing schedule D to not have applicability, notwithstanding the fact that it still remains in the award because of its consistency with other awards. Yes, James is nodding.

PN325

MR KEMP: That's right. That is correct.

PN326

THE DEPUTY PRESIDENT: Excellent. All right. Well, then in that case everything in D1 is new and we don't need to go back and compare it to the exposure draft, so we can put our exposure drafts down and refer only to this document. So D1:

PN327

In applying the supported wage system for employees covered by this award an employer will apply schedule D as varied by this appendix D1.

PN328

I presume that's uncontroversial. D1.2 in this schedule:

PN329

Workplace data means data collected by an employer with respect to an employee's productive capacity in accordance with -

PN330

- and James, you mentioned earlier changing the word "modified" to something else, or are you keeping the word "modified" in the relevant handbook or guideline?

PN331

MS CHAN: No, isn't it just going to "supported wage system handbook"?

PN332

MS FREELAND: Yes, that's ‑ ‑ ‑

PN333

MS CHAN: Because I'm assuming the handbook gets updated.

PN334

MR KEMP: Yes, that's right, and we'll just get how you'll do that.

PN335

THE DEPUTY PRESIDENT: Yes.

PN336

MR KEMP: And we committed to circulate that by - is it 30 April?

PN337

MS FREELAND: 30 April.

PN338

MS WILSON: But you're not actually changing - the idea is just to put a further ‑ ‑ ‑

PN339

MR KEMP: Some reference in.

PN340

MS WILSON: So it will just be "Supported wage system handbook", won't it?

PN341

MR KEMP: Yes.

PN342

THE DEPUTY PRESIDENT: Yes, so we can all strike out the word "modified" in square brackets.

PN343

MS LANGFORD: We're just looking at the term "productive capacity". Can we use "productive output", because that's what we've been sort of using in a lot of our discussions throughout the process?

PN344

THE DEPUTY PRESIDENT: Any views?

PN345

MR KEMP: I don't know the implications of that.

PN346

MS FREELAND: We can check.

PN347

MR KEMP: We can check.

PN348

MS LANGFORD: Yes.

PN349

THE DEPUTY PRESIDENT: Is productive capacity a term that's used throughout the current SWS handbook?

PN350

MR KEMP: I'm not familiar enough with that, actually. I'll just check.

PN351

MS FREELAND: No.

PN352

MR KEMP: If it has no bearing then we're happy to change ‑ ‑ ‑

PN353

MS WILSON: We need to consider the - yes.

PN354

THE DEPUTY PRESIDENT: All right. So I'll just circle that in my document and put a question mark there.

PN355

MS CHAN: And maybe revisit it at the next conference.

PN356

MS LANGFORD: Yes.

PN357

MS WILSON: What are you suggesting?

PN358

MS CHAN: Revisiting ‑ ‑ ‑

PN359

MS SVENDSEN: Productive output.

PN360

MR KEMP: Productive output.

PN361

MS LANGFORD: The wording.

PN362

THE DEPUTY PRESIDENT: So perhaps in order ‑ ‑ ‑

PN363

MR CHRISTODOULOU: Because that's what we're measuring.

PN364

MR KIRKHAM: It's already in the handbook ‑ ‑ ‑

PN365

MS LANGFORD: And I know in the actual handbook it does state "output". So it talks about employee output levels in the handbook.

PN366

THE DEPUTY PRESIDENT: So "productive output" or just "output" is your suggestion?

PN367

MS LANGFORD: "Productive output", yes.

PN368

THE DEPUTY PRESIDENT: "Productive output". All right. So could people take on notice that suggestion and perhaps it would be important for James to take advice from within the department as to whether that is consistent with the handbook. It would seem to be logical that the clause should be consistent with the handbook, all right, and report back at the next meeting.

PN369

So D1.3, supported wage rates. D1.3.1, "Clause D.4 of schedule D does not apply." Does anyone just want to check what that means or is everyone aware of why it doesn't apply?

PN370

MS SVENDSEN: I'm looking at it now. If it doesn't apply what do you assess it on, though?

PN371

MR KEMP: This is because it's inserting ‑ ‑ ‑

PN372

MS WILSON: This other clause.

PN373

MS SVENDSEN: But the other ‑ ‑ ‑

PN374

MR KEMP: ‑ ‑ ‑ this other clause.

PN375

MS SVENDSEN: Yes, I understand that, but 10.4 provides a table of assessed capacity against relevant minimum wage module. I'm not sure that there's a necessity to have 10 per cent equals 10 per cent, 20 per cent equals 20 per cent, but be that as it may, that's actually what 10.4 refers to - I mean, sorry, D.4 refers to.

PN376

THE DEPUTY PRESIDENT: This is perhaps because you're moving away from the rounding up ‑ ‑ ‑

PN377

MR CHRISTODOULOU: 10 per cent, yes, and going to the actual ‑ ‑ ‑

PN378

THE DEPUTY PRESIDENT: ‑ ‑ ‑ and you're going to the precise percentage.

PN379

MS SVENDSEN: The table doesn't actually indicate anything about actual or not actual. It says, "Assess capacity, 10 per cent. Relevant minimum wage, 10 per cent. Assess capacity, 20 per cent. Relevant minimum wage 20 per cent." I mean, it actually does that all the way up to 90. I'm not sure that - D.4.2, which provides the minimum amount payable, that's a different one, but I'm not actually sure why we would actually make any reference to appendix D in this, because - other than saying that this varies ‑ ‑ ‑

PN380

MR KEMP: It does apply, though, in relation to D4.2, which has the $82, and the D4.3. So we've just struck out that whole section.

PN381

MS LANGFORD: Yes.

PN382

MR KEMP: So it's all of D.4, rather ‑ ‑ ‑

PN383

MS LANGFORD: Because it has to ‑ ‑ ‑

PN384

MR KEMP: And saying basically none of that wage stuff applies.

PN385

MS LANGFORD: Yes.

PN386

MR CHRISTODOULOU: The only thing you could do is to replace in this schedule the actual - the operation of the new - rather than just the amendments, the actual operation, but ‑ ‑ ‑

PN387

MS SVENDSEN: Sorry, I thought this replaced the whole of D in this - well, it doesn't replace it.

PN388

MR CHRISTODOULOU: It modifies ‑ ‑ ‑

PN389

MS SVENDSEN: It provides variations so that D.1 will apply in this award and you don't need to reference D. Wasn't that the intent?

PN390

MS WILSON: I thought so too.

PN391

MS FREELAND: The way that we've got the wording in D1.1 is that, "In applying the supported wage system for employees covered by this award an employer will apply schedule D as amended" - sorry, "as varied by this appendix D1. So it's only where the variations in appendix D1 are different to what's set out in schedule D.

PN392

MS CHAN: Yes. So it supplements -

PN393

MR KEMP: Yes.

PN394

MS CHAN: So this appendix D1 supplements what's in the existing appendix D, from what I can understand.

PN395

MR CHRISTODOULOU: Okay. Can I just say, if we're talking about plain English, this will make it really confusing for ‑ ‑ ‑

PN396

MS SVENDSEN: We're not talking about plain English in the context of this award.

PN397

MR CHRISTODOULOU: Okay.

PN398

MS SVENDSEN: Do not say those words. Do not say those words.

PN399

MR CHRISTODOULOU: Okay. All right. Well, just in terms of trying to get ‑ ‑ ‑

PN400

MS WILSON: Clarity.

PN401

MS CHAN: For clarity.

PN402

MR CHRISTODOULOU: So we have been through a clarity.

PN403

MS CHAN: For ease of reading.

PN404

MS SVENDSEN: Yes, at these clauses.

PN405

MR CHRISTODOULOU: Having to then look at this clause and then go back and look at this clause to work out what you've got to do becomes really complicated.

PN406

MR KEMP: The reason, as I articulated last week, that we did that, was our understanding was that the desire of the Commission is to have consistency across all the awards, and so rather than the SESA having a different schedule D to all other awards, basically the award is consistent with the exception of D1. So that is why we did it like that.

PN407

THE DEPUTY PRESIDENT: Would that principle still be able to be applied if you had D in the award but then you had D1 which was exhaustive and complete ‑ ‑ ‑

PN408

MR CHRISTODOULOU: Yes.

PN409

THE DEPUTY PRESIDENT: ‑ ‑ ‑ as to the obligations of the employer and the employee? You might then say, "Well, why have the old D?", but you might say, "Well, we've got the old D there because it's in all the other awards." It just might be something that the Commission would, given the unique nature of this award, might well be happy to see D removed and replaced by a new D, but it would be clearer to everyone if it was called D1, because then it would be clear that it was different.

PN410

MS LANGFORD: I'm just wondering about - sorry, Leigh.

PN411

MS SVENDSEN: No, I was just going to say something in relation to something else.

PN412

MS LANGFORD: D.4.2, so that's not going to apply with the modifications.

PN413

MR CHRISTODOULOU: No, it's not.

PN414

MS LANGFORD: Yes, so ‑ ‑ ‑

PN415

MR KEMP: So that's (indistinct).

PN416

MS LANGFORD: I agree, yes.

PN417

MR CHRISTODOULOU: So, Kerrie, this entire D ‑ ‑ ‑

PN418

MS LANGFORD: So it has to go.

PN419

MR CHRISTODOULOU: No - well, it's what is in every single other award.

PN420

MS LANGFORD: Yes, but it just ‑ ‑ ‑

PN421

MR CHRISTODOULOU: So the reason James has left it in there is that - and I'm thinking ‑ ‑ ‑

PN422

MS CHAN: Like, the definitions will ‑ ‑ ‑

PN423

MS LANGFORD: Yes.

PN424

MR CHRISTODOULOU: I'm conceiving it could apply theoretically. Let's say we set up some social enterprise where an ADE actually had 80 per cent people without disabilities and decided to operate like any other employer ‑ ‑ ‑

PN425

MS SVENDSEN: Then they'd have to operate under that award, Chris, the relevant award.

PN426

MR CHRISTODOULOU: That award. Okay. All right.

PN427

MS SVENDSEN: Not this award. I will just say in terms of - the schedules are not all the same. I mean, the national training wage schedule won't even all be the same, because there are differences between awards. The schedule numbering is, however. There's a tendency towards schedule numbering now, but if you actually take schedule A in each of the revamped awards that have got classifications in them they're nowhere near the same, as an example.

PN428

I mean, that's the one that kind of stands out. So there isn't a reason per se - I'm not saying that we shouldn't do D1 at this stage, but there isn't a reason per se why you wouldn't move to just having a schedule D that regardless of whatever else we may or may not do, that was not just reflective for this award and relevant for this award.

PN429

MR CHRISTODOULOU: I'm happy with that.

PN430

MS SVENDSEN: So you could do either, and I don't think that - it's more about - there is a move towards formatting, so you'll now find, for instance, the termination and redundancy clauses are all the last thing in the award prior to the schedules.

PN431

That was not previously the case. he number of clauses are not identical in the award but the set‑out in terms of all leave sits together, all allowances sit together, all wage rates sit together, that kind of formatting is being standardised and the schedules are being standardised to the extent that they're standard among awards but they aren't all the same and therefore there's no reason why we couldn't actually propose - depending on how the Commonwealth wants to go with it, and I'm not opposed to either way, but that you could actually propose a new entire schedule D that applied for this award ‑ ‑ ‑

PN432

MR CHRISTODOULOU: Yes. That's what we'd agree, yes.

PN433

MS SVENDSEN: ‑ ‑ ‑ as opposed to having D and D1.

PN434

MR KEMP: The Commonwealth isn't opposed to doing that. It was just - if it was acceptable to the Commission to have a new schedule D and if we called it D1, schedule D1, that's fine. I think, yes, we don't mind either way.

PN435

MS LANGFORD: Don't quibble with that.

PN436

MR KEMP: It's really the ‑ ‑ ‑

PN437

MS LANGFORD: The terms.

PN438

MR KEMP: ‑ ‑ ‑ detail of the clauses that we were concerned about.

PN439

MS LANGFORD: Yes.

PN440

THE DEPUTY PRESIDENT: Yes, and are there things therefore in the current schedule D that people know off the top of their heads would need to be brought into D1 in order to effect that.

PN441

MR CHRISTODOULOU: Well, you'd know.

PN442

MR KEMP: I think the intent was that we would keep more or less the current schedule D as it is, with the exclusion of - that D.4 is probably - and then we would have to renumber this ‑ ‑ ‑

PN443

THE DEPUTY PRESIDENT: So everything that isn't in current schedule D.4 would then be - under this new reformatting would need to come into new D1.

PN444

MR KEMP: Yes.

PN445

THE DEPUTY PRESIDENT: So would you be willing to have a go after today - taking into account other amendments that might be suggested, would you be willing to have a go at doing that and circulating it?

PN446

MR KEMP: Yes, certainly.

PN447

THE DEPUTY PRESIDENT: Okay, because then I can take guidance again from the President about whether it's likely to bump up against any opposition from the Full Bench, and if he says no, then you know that you've got one agreed variation.

PN448

MR KEMP: Yes.

PN449

MS WALSH: Excuse me ‑ ‑ ‑

PN450

THE DEPUTY PRESIDENT: Mary?

PN451

MS WALSH: May I ask a question of James? James just in relation to - we're looking at schedule D. If we look at the eligibility criteria and D.3.1, "Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required." Are we still putting "competence" anywhere in these, bearing in mind that the applicants want the word "competency" removed?

PN452

THE DEPUTY PRESIDENT: Which one is that, Mary, that you're referring to?

PN453

MS CHAN: D.3.1 ‑ ‑ ‑

PN454

MS WALSH: It's D.3.1.

PN455

MS CHAN: ‑ ‑ ‑ of the current - exposure ‑ ‑ ‑

PN456

THE DEPUTY PRESIDENT: But that ‑ ‑ ‑

PN457

MS CHAN: That's still the current award.

PN458

MS WALSH: Of the current schedule D.

PN459

THE DEPUTY PRESIDENT: Okay, so you're now talking about the - yes.

PN460

MS WALSH: Sorry, schedule D. The current schedule D. We were asked to have a look and see if there was anything in there that we had issues with or concerns about.

PN461

THE DEPUTY PRESIDENT: Do you think we could come back to that? Just in terms of being orderly ‑ ‑ ‑

PN462

MS WALSH: Take it on notice. That's fine.

PN463

THE DEPUTY PRESIDENT: ‑ ‑ ‑ if we look at this piece of paper first.

PN464

MS WALSH: That's fine.

PN465

THE DEPUTY PRESIDENT: Then we could go to schedule D and that would be something that would be a point to look at.

PN466

MS WALSH: Not a problem.

PN467

THE DEPUTY PRESIDENT: Because that's the sort of thing that James will need to know if they're going to do some drafting. All right. So D1.3.2 is a very important constellation of paragraphs, so is the group happy with that?

PN468

MS CHAN: No, the employers did actually revisit the percentage of 12.6 per cent. We've run the calcs again. So $82, being, I guess, the base, that applies - or the floor - wage that actually applies in the award as a weekly wage when divided by 38 equates to 2.16, so $2.16, from memory. When translated into a percentage it's actually closer to 12.2. It's actually 12.19 instead of 12.6. So maybe if we can just have the parties have a bit of a look at that and revisit that number.

PN469

MR KEMP: The Commonwealth didn't want to propose a percentage ‑ ‑ ‑

PN470

MS CHAN: Sure.

PN471

MR KEMP: ‑ ‑ ‑ and last time we had X and left it to the parties to decide what that needs to be.

PN472

THE DEPUTY PRESIDENT: So let's do it now.

PN473

MS CHAN: Well, I guess the union's views ‑ ‑ ‑

PN474

THE DEPUTY PRESIDENT: Let's not kick all these things into touch. So did you have a chance to talk to Kairsty about the maths?

PN475

MS LANGFORD: No, I haven't. I mean, literally it ‑ ‑ ‑

PN476

MS CHAN: It really is 82 divided by 38 divided by the grade 1 minimum wage of 17.70 in the award is 12.19. I'm happy to pass that down.

PN477

MS WILSON: 12.19?

PN478

MR KEMP: Yes.

PN479

MS WILSON: So that's not 12.6.

PN480

MS LANGFORD: No, it was the figure I plucked out the other day when I didn't have the figure in front of me, without a calculator. So I made a mistake.

PN481

MS SVENDSEN: I won't do 12.5 ‑ ‑ ‑

PN482

MS WILSON: No, I'm quite happy for it to be 12.6, but I wanted to understand how you got to it, because it is not ‑ ‑ ‑

PN483

MS CHAN: Yes, 12.2.

PN484

MS WILSON: It is not ‑ ‑ ‑

PN485

THE DEPUTY PRESIDENT: Yes, but they're moving away from 12.6 now, Kairsty, so ‑ ‑ ‑

PN486

MS WILSON: Yes. No, 12.6 is fine, but, you know, it's not dividing ‑ ‑ ‑

PN487

THE DEPUTY PRESIDENT: They're moving away from 12.6, Kairsty, so they're now ‑ ‑ ‑

PN488

MS WILSON: No, they're not.

PN489

THE DEPUTY PRESIDENT: Yes, they are.

PN490

MR KEMP: Yes, they are, to 12 point ‑ ‑ ‑

PN491

THE DEPUTY PRESIDENT: The employer is now saying that they would like it to reflect the accurate maths.

PN492

MS CHAN: Yes, because we - yes.

PN493

MS WILSON: Well, I don't agree to that, no. I mean, 12.6 is what you said. 12.6 ‑ ‑ ‑

PN494

THE DEPUTY PRESIDENT: Is that just because 12.6 is more?

PN495

MS WILSON: Yes.

PN496

THE DEPUTY PRESIDENT: So you could say 13 or 15 or ‑ ‑ ‑

PN497

MS WILSON: We thought, right, that was fine. 12.5, but not 12.2.

PN498

THE DEPUTY PRESIDENT: Okay.

PN499

MS LANGFORD: This is a mathematical thing at the end of the day.

PN500

MS WILSON: Well, you proposed it. It's accepted. I just wanted to know how, but anyway, 12.5 - you're not going to go with 12.6.

PN501

THE DEPUTY PRESIDENT: Okay, yes. So that's not going to land the outcome because they've changed their minds and we're not running a negotiation where what you said three meetings ago you're locked into. It's what's right for the whole group. I don't have a view. I understand more is better, but can we talk more about it?

PN502

MR CHRISTODOULOU: Can I just briefly - you're saying that you want to consider 12.5 per cent. Is that right?

PN503

MS WILSON: Yes.

PN504

MR CHRISTODOULOU: We will have a think about ‑ ‑ ‑

PN505

MS CHAN: We can consider that, just I guess just to re‑establish where we were coming from, we were looking at this rate as being a percentage of the actual weekly wage being equivalent to one hour of the weekly wage.

PN506

MS WILSON: That's right, yes.

PN507

MS CHAN: So that's what the 12.2 per cent is. That's where we've come from, so that you guys have that understanding behind it. If we need to look at an arbitrary 12.5 that could potentially bring into account issues about sort of work value and why are we looking at 12.5 instead of 12.2. Just going to put it out there.

PN508

THE DEPUTY PRESIDENT: All right. You are going to have a look at that in a break and come back.

PN509

MS CHAN: Consider that, yes.

PN510

THE DEPUTY PRESIDENT: All right. So is there anything else about D1.3.2 that we need to discuss? The wording, subject to the actual figure being agreed is acceptable. Is that right? Rob?

PN511

MR KIRKHAM: I might just check with my colleagues, is it assessed capacity or were we talking about assessed output in terms of production and capacity?

PN512

MR CHRISTODOULOU: Where is this?

PN513

MR KIRKHAM: In D1.3.2(a) and (b), capacity ‑ ‑ ‑

PN514

THE DEPUTY PRESIDENT: Rob, we'll need you to talk into a microphone.

PN515

MS SVENDSEN: I know we're going to - I know we're doing the actual assess capacity, but are we actually doing 12.6?

PN516

MS WILSON: No, now they're saying 12.2.

PN517

MS SVENDSEN: No, but even if it's 12.2 - sorry, my point was really that I know we're going to the rate they're assessed at, but are we doing 12.6, 12.5 whatever? Are we only doing - I thought we were only doing whole numbers.

PN518

MS WILSON: That's right. We're rounding up.

PN519

MS SVENDSEN: I think that an assessed capacity is only going to be on whole numbers, not on point something numbers, and I've just realised that that's what - like, I actually thought the 12 - I was looking at the 12.6 or whatever it was; doesn't matter what it is, but the figure you were referring to as a percentage in terms of the minimum rate, that it wasn't actually 12 point anything in relation to the assessed capacity, which is a very different issue than ‑ ‑ ‑

PN520

THE DEPUTY PRESIDENT: The minimum.

PN521

MS SVENDSEN: ‑ ‑ ‑ the minimum rate.

PN522

MR KEMP: So in relation to the minimum, the minimum - well, it's 12.6 here, but it will be whatever it is. If it's point something that will apply as a minimum, however if, say, in this situation, there's 12.6 and someone got assessed as 12.2 ‑ ‑ ‑

PN523

THE DEPUTY PRESIDENT: They'd be ‑ ‑ ‑

PN524

MR KEMP: ‑ ‑ ‑ then it would be rounded up to 12.6, however if they got 12.7 as an assessed capacity then it would be 13. So the 12 point whatever it is can apply as a minimum, however if there is an assessed capacity that is even a smidge over that then there's a rounding.

PN525

THE DEPUTY PRESIDENT: But I think Rob's point wasn't about the number, it was about the terminology, whether or not the words "assessed capacity" are still appropriate given the earlier conversation about productive output.

PN526

MS LANGFORD: I think we just take references to capacity on notice, lump them in the same basket.

PN527

THE DEPUTY PRESIDENT: Yes, but we don't want to take too much on notice, because then you have a whole ‑ ‑ ‑

PN528

MS LANGFORD: Well, (indistinct) word.

PN529

THE DEPUTY PRESIDENT: Yes. So if you went to productive output you'd say "Noting assessed productive output is to rounded to the nearest percentile". Is that right?

PN530

MS LANGFORD: I would say so, yes.

PN531

MR KIRKHAM: Yes.

PN532

THE DEPUTY PRESIDENT: Okay, so that one's not kicking something else into touch, it's the same thing kicked into touch. All right. D.1.4, assessment of capacity. So we've got a lot of terminology around the word "capacity". It appears over and over again in the next line as well, so you've got some - once you make that decision ‑ ‑ ‑

PN533

MR KEMP: We can - yes.

PN534

MS SVENDSEN: Play it through.

PN535

THE DEPUTY PRESIDENT: ‑ ‑ ‑ you'll have some redrafting to do.

PN536

MR KEMP: Yes, certainly.

PN537

THE DEPUTY PRESIDENT: So now we get into the weighty discussion that we had earlier, but here we've got the formulation, I think, of how to reconcile differences, including the reference to the Commission having the power to determine the matter. So I think we'll call for comments on that whole section rather than taking it line by line.

PN538

MS WILSON: Just in relation to that, I think it misses a step. I think that there needs to be - because basically what it's doing is if there is that disparity then it's stepping straight into a review assessment effectively, a second assessment. I would suggest that we have another step in there that if there is that disparity that there be the opportunity to take additional timings at the time that the assessment's taking place. When they've had the discussion and they're still at that disparity, then you have that ‑ ‑ ‑

PN539

MR KEMP: There is a bit of an administrative issue there because we are just amending the SWS. There is a set rate or an assessment, so they would be doing additional timings for free. By saying it's a second thing they can bill us twice for additional data, which is effectively what it is.

PN540

MS WILSON: I knew that's what it was behind. I note they actually can get additional money if they - they can. They have to go and say, "Well, it's really important that we do that", and that is one reason why it would be good to have it written in, because effectively if you go back to having another assessment, that is not - it can't necessarily take place at the time so there would be a gap which I think would be unfortunate if we couldn't get some ‑ ‑ ‑

PN541

MR CHRISTODOULOU: I think our proposal, which Margaret will go through, would be consistent with your approach.

PN542

MS WILSON: Yes.

PN543

MR CHRISTODOULOU: But you've just got to let us respond.

PN544

THE DEPUTY PRESIDENT: So why don't we hear what Margaret's - or what the ADEs were thinking and then James can also take that in - he can comment on whether the Commonwealth can afford that.

PN545

MS WILSON: I hadn't quite finished, but that's okay.

PN546

THE DEPUTY PRESIDENT: I'm sorry, Kairsty. No, please finish.

PN547

MS WILSON: Look, it was more - then it was in regards to the 20 per cent. We have had discussion with Paul about it and I'm not comfortable with the 20 per cent. I think it's a bit high, but Paul is - and Leigh, if I speak for her, I mean, I think they're both comfortable with 20 per cent, but I'm not.

PN548

THE DEPUTY PRESIDENT: You're willing to settle, even in an uncomfortable way?

PN549

MS WILSON: No, I don't know. I would really have to think about it. I just think 20 per cent is quite a big disparity.

PN550

MR CHRISTODOULOU: Can I just indicate, like from a Greenacres perspective, we wanted 30 per cent, but I deferred to some of the others that said, "All right, we should go for 20 as a compromise", but, like, I'm uncomfortable about 20. I want to go 30. I just would indicate that.

PN551

THE DEPUTY PRESIDENT: All right. Noting that reservation about the 20, let's hear what the ADEs thought about this during their caucus.

PN552

MS CHAN: So certainly in relation to D1.4.2 we did actually have concerns about obviously what the words "second assessment" actually meant and whether that was obviously a second independent assessment or, as we were thinking, potentially a reassessment by that same first assessor within a certain time‑frame.

PN553

We haven't really thought about the number of days or months or weeks that that time‑frame might look like at this point, but we would certainly be in a position where we do what to put a time‑frame on that reassessment just to allay those concerns as well, to make sure that, you know, we're not reassessing somebody when they have moved into a different role or where the role has essentially changed between their initial assessment and their reassessment as we would look at it. So we did want to put that to the Commonwealth and I guess get a bit of an understanding about what it really did mean by second assessment, and by whom.

PN554

MS FREELAND: Yes. In some ways we'd be guided by the parties on that issue and we would expect that the detail around that would form part of the guidelines, amendments to the guidelines.

PN555

MR CHRISTODOULOU: Sure.

PN556

MS CHAN: Right.

PN557

MS FREELAND: So happy to hear the views of parties around that and we can seek to incorporate that in our drafting.

PN558

MR CHRISTODOULOU: I think we were thinking that we would get the same assessor to do the second assessment and then if there was still a ‑ ‑ ‑

PN559

MS FREELAND: Discrepancy, yes.

PN560

MR CHRISTODOULOU: ‑ ‑ ‑ discrepancy, then that's when I guess either party can - the parties can talk to each other and see whether they can resolve that discrepancy, and if that still didn't occur, then, yes, then you'd go into the dispute settling proposal listed in D1.4.4, but we wanted to clarify D1.4.4 as well.

PN561

MS FREELAND: Yes.

PN562

MR CHRISTODOULOU: So we didn't see a second - a different organisation having to come in, therefore the resources that might be necessary for the first assessor would be there anyway, because otherwise they would have paid it for the second assessor.

PN563

THE DEPUTY PRESIDENT: Did you talk about how that would work in terms of the actual occasion? So would it be on the same occasion, all happening within the same ‑ ‑ ‑

PN564

MR CHRISTODOULOU: Yes. What we're thinking is - well, I think we didn't quite - from my point of view I think the sooner it can happen after there's a disparity the better.

PN565

MS CHAN: Yes.

PN566

MR CHRISTODOULOU: Let's not wait weeks and months after the event.

PN567

MS CHAN: Yes, but I think we also need to recognise the limitations that assessors might have on their time as well. So we might suggest something like within, I don't know, four weeks, for instance - and I'm just throwing that out there with no instructions ‑ ‑ ‑

PN568

MR CHRISTODOULOU: Yes.

PN569

MS CHAN: ‑ ‑ ‑ if you follow me.

PN570

MS WILSON: But, sorry, would that include the ADE taking fresh data as well?

PN571

MR CHRISTODOULOU: Yes. Maybe you could do.

PN572

MS LANGFORD: Maybe. Maybe.

PN573

MS WILSON: So they're using the same - they would be using the same data.

PN574

MS MOONEY: There would be the additional time‑frame between when the assessment was done and ‑ ‑ ‑

PN575

MS WILSON: Yes.

PN576

MS MOONEY: Like, when the assessment was first done and the second one, I guess, but other than that your workplace data is not going to change.

PN577

MS WILSON: See, that's where - the difference is if you're taking additional timings is one thing, but if you're reassessing a second assessment I would take that meaning that you would need to have fresh data from both the ADE as well as from the assessor, otherwise how is it a second assessment?

PN578

MS LANGFORD: Yes. What we need to consider in that, and I'd need to go back to the modifications that we made around data collection, but what was the time period we said for the internal data collection?

PN579

MS WILSON: You said three months, but when there was a discussion about it before, the three months was because there wasn't any data.

PN580

MS LANGFORD: Yes, so the additional data on top of that.

PN581

MS WILSON: I would have thought there'd need to be. If it's a reassessment and you want 50/50 and there's already been discrepancy between the two, then you'd need to have the fresh data from both. That's why I'm saying that there's a step missing, I think, that there needs to be paid for up to three hours of additional timings that you could do on the spot to see where things are at and then if there's still discrepancy you go to a review assessment or a second assessment. It just doesn't - to me it doesn't make sense the way it is. It just needs that step.

PN582

MS LANGFORD: So what time‑frame would you be looking at, sorry ‑ ‑ ‑

PN583

MS WILSON: See, I would be ‑ ‑ ‑

PN584

MS LANGFORD: ‑ ‑ ‑ in terms of that reassessment and the additional data?

PN585

MS WILSON: No, I'm saying the additional ‑ ‑ ‑

PN586

MS LANGFORD: Yes.

PN587

MS WILSON: Sorry, two things, all right. The step that's missing could be done within a very short space of time. Additional time ‑ ‑ ‑

PN588

MS SVENDSEN: Maybe even that day.

PN589

MS WILSON: Yes, that's right, and during that assessment process.

PN590

MS LANGFORD: Yes, that's correct.

PN591

MS WILSON: Then if there is still that 20 per cent discrepancy you have a reassessment, which could be a month, two months.

PN592

MS LANGFORD: Yes.

PN593

MS WILSON: I mean, it's just that step needs to be put in there.

PN594

MS LANGFORD: Yes.

PN595

MS CHAN: Let me just address the situation there. A same day reassessment can't actually occur, because an assessor's put aside two hours to be out at Greenacres, and you know what, then they've got an hour drive to another ADE to assess another employee.

PN596

MS SVENDSEN: Well, there are ‑ ‑ ‑

PN597

MS WILSON: That's not going to happen. I mean, realistically we're talking about - you know, Greenacres, how many employees have you got at Greenacres?

PN598

MR CHRISTODOULOU: 240.

PN599

MS WILSON: 240. So they're all going to need to be assessed around the same time because they're all going to be due. So the assessor is going to put ‑ ‑ ‑

PN600

MR CHRISTODOULOU: We wouldn't be assessing everyone at the same time, but anyway.

PN601

MS WILSON: Well, you'd be assessing a number of them.

PN602

MR CHRISTODOULOU: Yes.

PN603

MS WILSON: You wouldn't be having an assessor there ‑ ‑ ‑

PN604

MR CHRISTODOULOU: For one person.

PN605

MS LANGFORD: That's right.

PN606

MS WILSON: So realistically you're going to have them there for a week, even more. So you would have the discussions in regards to - when they finish them, so I would expect that there would be enough time for them to do those additional timings whilst they're there.

PN607

MS LANGFORD: My only concern, and probably just taking into account the Maywell situation where some of the orders that came in - whether they actually needed a particular item such as the crate(?) built(?) or things like that, so there are going to be times where that would be difficult.

PN608

MS WILSON: Again, you're still going to be there. You might have your crate - I mean, the crate was built, you know, that afternoon and they could start doing the timings again the next day. So they would be there for ‑ ‑ ‑

PN609

MR CHRISTODOULOU: I think the easiest thing with this, if you put a provision in there that says "as soon as practicable ‑ ‑ ‑

PN610

MS LANGFORD: Yes, I think so.

PN611

MR CHRISTODOULOU: ‑ ‑ ‑ as agreed between the employer and the assessor" then that's what we should do, rather than use ‑ ‑ ‑

PN612

MS LANGFORD: Yes.

PN613

MR CHRISTODOULOU: If we can do it then we would and if it can't because of a whole range of reasons it might be the next day or the day after.

PN614

MS LANGFORD: Yes, agreed.

PN615

MS WILSON: Yes, as soon as - but there be that step that up to three hours paid for ‑ ‑ ‑

PN616

MS WALSH: It could even be that the job changes.

PN617

MS LANGFORD: Absolutely, yes.

PN618

MS WALSH: The contract might be finished and in two days' time it's a totally different contract.

PN619

MR CHRISTODOULOU: Let's hope not.

PN620

MS LANGFORD: Yes, we hope not.

PN621

MS WALSH: But it does happen.

PN622

MR CHRISTODOULOU: It does happen.

PN623

THE DEPUTY PRESIDENT: So, James, do you want to come back then and raise your concerns about the Commonwealth or the federal government's capacity to pay?

PN624

MR KEMP: We're not totally changing the whole pricing structure of SWS. This is just a variation to that particular tool. Certainly we can look at how we might be able to amend this appendix, or schedule D1, to take account of comments about additional data and reassessment. Some of these things, though, as well, would be things, as Rowena said, that might be spelt out in the guidelines as well, where it is about the assessor coming back, and those sorts of things. I'm not sure that we would want to go into a lot of detail in the award about time‑frames, but certainly it's probably something that sits in the guidelines, and as we said, we're happy to share the guidelines and we've promised to share the guidelines at the end of the month as well.

PN625

MR CHRISTODOULOU: The only other matter which - and, Margaret, please direct me if I've misinterpreted the position ‑ ‑ ‑

PN626

MS CHAN: No.

PN627

MR CHRISTODOULOU: ‑ ‑ ‑ but we don't think - let's say we've gone through that process. We've had the initial assessment, there's a disparity, we've put the resources in to doing it again, there's still a disparity. We're actually saying at that point we don't think we need to spend even more time again getting a second assessor in. If there's going to be a dispute let's deal with it, because otherwise it's just going to be too much paperwork and bureaucracy around this which is going to just mean a lot of down time trying to sort this out. So we're thinking let's get a second assessment done, but I don't know that it necessarily needs to be a complete independent assessor in.

PN628

MR KEMP: Yes, and some of those things about who it is and if it's the same assessor and so forth, that's probably something that would go in the guidelines rather than within the award.

PN629

MS LANGFORD: Yes, correct. That makes sense.

PN630

MS FREELAND: And we are expecting to engage with Sharon and Walter who were our expert wage assessors in the trial to talk through some of these issues. So those things that none of us can speak to today around whether or not an assessor constructs their week in such a way that they'd have extra time, they can speak to those issues to us in doing that drafting.

PN631

THE DEPUTY PRESIDENT: All right. So that means that to progress all these paragraphs really in D1.4 you're needing to just look at what James and Rowena come back with and see if that satisfies everybody, and then also you'll look at it in the context of the guidelines as well. Is that right?

PN632

MR KEMP: There's just ‑ ‑ ‑

PN633

MR CHRISTODOULOU: There are other issues, I think.

PN634

THE DEPUTY PRESIDENT: There are other issues? Okay.

PN635

MR KEMP: There are some issues, yes, I just wanted some clarity on in our drafting as well.

PN636

MS WILSON: Can I just, in regards to - sorry, with the 20 per cent, I know, Chris, you've raised those concerns. When you have the discussions with Walter and Sharon I would like - I guess I'd be guided by what they said in relation to the 20 per cent. If they thought that that was a fair enough discrepancy I would go along with that. If they indicated that it was too high, I mean, I'd like to hear that.

PN637

MS CHAN: Sure, because, yes, there was some - there was a little bit of confusion from employers about - notwithstanding the explanation, how that 20 per cent was actually arrived at as well.

PN638

MS LANGFORD: Yes, absolutely.

PN639

MS WILSON: Yes, I know, because I think there's two different ways of doing it and it could be quite a big difference. If you have one - the employer, for example, got 40 per cent and the assessor got 60 per cent, that's 20 per cent difference, the way I look at it, but then if you put the two together and divide them, it's not - it doesn't reach 20 per cent. So how do you do it?

PN640

MS FREELAND: It's between the raw overall productivity scores.

PN641

THE DEPUTY PRESIDENT: So the spread as they might say in the banking industry.

PN642

MS WILSON: That's right, yes.

PN643

THE DEPUTY PRESIDENT: The actual spread between the two figures as opposed to ‑ ‑ ‑

PN644

MS FREELAND: Yes.

PN645

MS WILSON: So do you take it the first way or the second way?

PN646

MS FREELAND: The first way.

PN647

MS CHAN: The first way.

PN648

SPEAKER: 20 to 60, 20 to 40.

PN649

MS WILSON: See, that's the way I would have taken it, but that's not the way Paul took it.

PN650

MS FREELAND: Yes, so we could perhaps make that wording a bit clearer, that it's the ‑ ‑ ‑

PN651

THE DEPUTY PRESIDENT: You used examples in ‑ ‑ ‑

PN652

MS FREELAND: Yes.

PN653

MS WILSON: I know, but it still wasn't that clear.

PN654

THE DEPUTY PRESIDENT: No. You haven't used an example in respect of that, so I'm suggesting that perhaps you might also choose an example that demonstrated that point, that it's the spread between the two figures that is the figure that you're looking for.

PN655

MS WILSON: Yes, well, that would make sense, wouldn't it?

PN656

MS FREELAND: Yes.

PN657

THE DEPUTY PRESIDENT: All right. You said, Kerrie, that there was more in relation to 1.4 - or Margaret.

PN658

MS LANGFORD: Yes, Margaret's talking on behalf of us.

PN659

THE DEPUTY PRESIDENT: All right.

PN660

MS CHAN: Yes. So at 1.4.4 we felt that after the first line, the words "workplace data", there should actually be "or" inserted before "as a result", such that the sentence reads, "Where an employee's productive capacity" - output, whatever - "is assessed without reference to workplace data or as a result of the discrepancy", which arises at D1.4.3(b), then employee or the employer can seek to raise that dispute. So it really just shouldn't be in circumstances where it's just because there was no workplace data. There should be sort of that opportunity to go there where there isn't agreement.

PN661

MS FREELAND: Yes, that's right.

PN662

MS WILSON: What if the workplace decides not to do workplace data? Don't they have that right?

PN663

MS SVENDSEN: Yes, they do.

PN664

MS WILSON: They do, don't they?

PN665

MR CHRISTODOULOU: Yes, that's what it says.

PN666

MS CHAN: Yes.

PN667

MS LANGFORD: Yes, that's right.

PN668

MS CHAN: If it's assessed without reference to workplace data then they can go - then they can invoke dispute resolution.

PN669

THE DEPUTY PRESIDENT: So in circumstances in which there would be no workplace data ‑ ‑ ‑

PN670

MS CHAN: Or if we disagree ‑ ‑ ‑

PN671

MS LANGFORD: That's right.

PN672

MS CHAN: ‑ ‑ ‑ then we can also invoke dispute resolution.

PN673

MS LANGFORD: Yes.

PN674

THE DEPUTY PRESIDENT: So really that suggestion is to make the clause read as everyone intended it to read, which is that there's - two different occasions would arise ‑ ‑ ‑

PN675

MS LANGFORD: That's right.

PN676

THE DEPUTY PRESIDENT: ‑ ‑ ‑ where there's no workplace data, one when the employer chooses not to in the first place and another where as a result of the application of that previous provision it takes precedence.

PN677

MS LANGFORD: That's right.

PN678

MS CHAN: Yes.

PN679

THE DEPUTY PRESIDENT: Okay. So that sounds like people are comfortable with that. James can take that all away.

PN680

MR KEMP: Can I just clarify, though, that people are happy with the drafting, particularly for D1.4.3(b). So where disparity exists there's a default mechanism prior to the dispute resolution mechanism. It doesn't just go do a dispute resolution. It could be that there's 21 different - and people just say ‑ ‑ ‑

PN681

MR KEMP: ‑ ‑ ‑ "Well, fine. That's fine."

PN682

THE DEPUTY PRESIDENT: (Indistinct) okay.

PN683

MS LANGFORD: Yes.

PN684

THE DEPUTY PRESIDENT: I think that was the point you made earlier, Chris, about when you might well resolve it.

PN685

MR CHRISTODOULOU: Yes.

PN686

THE DEPUTY PRESIDENT: And if it's not resolved - I mean, most dispute resolution procedures operate on a hierarchical basis, that if you resolve the dispute you don't go to the next step, but if you don't resolve the dispute you do go to the next step.

PN687

MS LANGFORD: Yes.

PN688

THE DEPUTY PRESIDENT: Is that okay with everyone?

PN689

MS LANGFORD: Yes.

PN690

THE DEPUTY PRESIDENT: All right, and in terms of the wording of D1.4.4, I think you just probably need to be ready for some commentary potentially by the Full Bench on - because what you're really doing is you're putting a kind of new dispute provision into a particular provision that qualifies the general dispute provision in the award. That is how you'd need to do it, I think, and the Full Bench will give you a view as to whether or not they're comfortable with that, but I'll certainly explain it and be in your corner.

PN691

MS CHAN: They may not take issue with it.

PN692

THE DEPUTY PRESIDENT: Okay. So now D1.5, review of assessment.

PN693

MS CHAN: We didn't actually have any issues with what it's intended to mean. We just thought it might be the case that D1.5.2 could be expressed in a slightly clearer manner, because an employer looking at the award might go, "Hang on, sorry, there's all these numbers. It's 12 months, three years. When does that all actually apply?" Maybe a worked example might be helpful. Certainly when all the ADEs got together and worked through we kind of, I guess, threw time‑frames on things to help our own understanding. So maybe a worked example might look something like if the initial assessment happens sort of at the three‑month mark then we might set out in a table or in a worked example that the next assessment is ‑ ‑ ‑

PN694

THE DEPUTY PRESIDENT: Could be between the amount ‑ ‑ ‑

PN695

MS CHAN: Correct, anywhere between that sort of one year and one year and three‑month mark, et cetera, et cetera, as we progress through the various periods, including the three years and the like.

PN696

MS LANGFORD: Yes.

PN697

MS CHAN: So it's just a stylistic thing, we think, and just to, I guess, avoid any confusion by employers about sort of what's actually intended to apply there.

PN698

MR CHRISTODOULOU: Yes, and the other thing is we just got - well, not so much confused, we think we understand, but the trial period that's meant to apply for the minimum wage ‑ ‑ ‑

PN699

MS CHAN: So this is at 1.6.1, just to bring everybody up to speed.

PN700

MR CHRISTODOULOU: Yes.

PN701

MS LANGFORD: Yes, it's that one.

PN702

MR CHRISTODOULOU: Yes, we're ‑ ‑ ‑

PN703

MS WALSH: Prior to the assessment.

PN704

MR CHRISTODOULOU: Yes, that's prior to the assessment. So once you - that's prior - okay. Prior to ‑ ‑ ‑

PN705

MR ROGERS: So is that the initial assessment ‑ ‑ ‑

PN706

MR KEMP: So basically you have to get paid whatever the minimum is that's agreed.

PN707

MR CHRISTODOULOU: Right.

PN708

MS LANGFORD: Yes.

PN709

MR CHRISTODOULOU: And then you have to have your wage assessment done when?

PN710

MR KEMP: Within 12 months.

PN711

MR CHRISTODOULOU: Within 12 months.

PN712

MR KEMP: Of the initial assessment.

PN713

MS CHAN: That's right.

PN714

MR CHRISTODOULOU: It says "will be reviewed within". See, the first - (a) says, "Your wage assessment of each - will be reviewed within".

PN715

MS CHAN: Yes. So the time‑frame for the initial assessment I guess is where the question mark is.

PN716

MR KEMP: Yes.

PN717

MS LANGFORD: Because it's a little unclear.

PN718

MR CHRISTODOULOU: And then you've got (c) which is, "Wages may be reviewed with either of the employee and" - "once every six months and not more than four years, four times every three years." That doesn't - I'm not sure what that actually means - well, I'm a bit confused about how often you want us to assess and reassess, to be honest.

PN719

MR ROGERS: Can we have a flow chart?

PN720

MS FREELAND: Sure.

PN721

THE DEPUTY PRESIDENT: So let's have a go at it here. I think what you're saying is that the first assessment ever must be conducted within 12 months of an employee being employed. Is that right?

PN722

MS FREELAND: No.

PN723

THE DEPUTY PRESIDENT: No? Okay.

PN724

MS FREELAND: That's the first review. So the first assessment should take place within three months, which I realise is not - that's the sort of usual period that ‑ ‑ ‑

PN725

MR CHRISTODOULOU: Yes.

PN726

MS LANGFORD: Of consecutive employment. yes.

PN727

MS FREELAND: Yes.

PN728

MR CHRISTODOULOU: Well, just be careful ‑ ‑ ‑

PN729

MS LANGFORD: And that during - yes, for that course.

PN730

MR CHRISTODOULOU: Are we using the word consecutive or not, because some of our employees can be there for three months but only be there for three days in three months.

PN731

MS LANGFORD: Sorry, what we were actually proposing for the trial period for this bit was 13 consecutive weeks.

PN732

MS CHAN: A minimum.

PN733

MS LANGFORD: As the minimum, but up to 26 ‑ ‑ ‑

PN734

MS CHAN: Non‑consecutive ‑ ‑ ‑

PN735

MS LANGFORD: ‑ ‑ ‑ non‑consecutive weeks, is what we were proposing.

PN736

MR CHRISTODOULOU: And within that time we will have done an assessment.

PN737

MS LANGFORD: Yes.

PN738

MR CHRISTODOULOU: Then after that we're thinking once they have their assessment we'll do a review within 12 ‑ ‑ ‑

PN739

MS LANGFORD: At 12 months, yes.

PN740

MR CHRISTODOULOU: At 12 months, and then after that it's then every three years.

PN741

MS LANGFORD: Yes, or if required.

PN742

MR CHRISTODOULOU: Or if required, earlier.

PN743

MS LANGFORD: If required.

PN744

MR CHRISTODOULOU: So then (c) though, does that come out or ‑ ‑ ‑

PN745

MS FREELAND: So (c) was to give effect to the initiative of either the employee or the employer to say, "Things have changed. We think we need another assessment but we don't want that happening every three months ‑ ‑ ‑

PN746

MS CHAN: No, or six months.

PN747

MS FREELAND: ‑ ‑ ‑ so we'll put some parameters around ‑ ‑ ‑"

PN748

MS LANGFORD: Yes, okay.

PN749

MR KEMP: They can't just ask for one ‑ ‑ ‑

PN750

MS CHAN: Yes, so their ability to have that reviewed is cut to four times in three years.

PN751

MR CHRISTODOULOU: So you might need to - yes

PN752

MS CHAN: Yes.

PN753

MR CHRISTODOULOU: So you might need to put in there that wage assessment may be reviewed at the request of or ‑ ‑ ‑

PN754

MR KEMP: Yes.

PN755

MR CHRISTODOULOU: It's a bit unclear.

PN756

MS CHAN: Yes.

PN757

MR CHRISTODOULOU: So you've got it there ‑ ‑ ‑

PN758

SPEAKER: You've got (indistinct) where a situation has changed.

PN759

MR CHRISTODOULOU: All right.

PN760

THE DEPUTY PRESIDENT: So it can't happen more than four times every three years.

PN761

MS CHAN: Yes.

PN762

MR CHRISTODOULOU: Okay.

PN763

THE DEPUTY PRESIDENT: And they must be three months - six months apart.

PN764

MS CHAN: At least.

PN765

THE DEPUTY PRESIDENT: Yes. Let me just - this is not your words, but I think this is what you're trying to get at. So I just noted that the trial period is prior to the first assessment. That's right, isn't it?

PN766

MS CHAN: Yes.

PN767

THE DEPUTY PRESIDENT: The first assessment must take place within 13 consecutive and 26 non‑consecutive weeks.

PN768

MS WILSON: Sorry, can I just - that's not actually in there now, that I can see.

PN769

THE DEPUTY PRESIDENT: No, that's right.

PN770

MS WILSON: Yes.

PN771

THE DEPUTY PRESIDENT: This is a suggestion for discussion.

PN772

MS CHAN: Yes.

PN773

THE DEPUTY PRESIDENT: I just wanted to clarify it.

PN774

MS WILSON: All right. Just in relation to the within, surely it should be - I mean, we don't want it to take place in the first couple weeks, so "within" means in that 13 weeks period. I thought they needed to be - they needed to have been employed 13 weeks and then it takes place, so not ‑ ‑ ‑

PN775

THE DEPUTY PRESIDENT: I thought they said "after".

PN776

MS LANGFORD: Yes. So it's after a minimum of 13 consecutive weeks, is what we - yes.

PN777

MS CHAN: Yes, proximate to.

PN778

MS LANGFORD: Yes.

PN779

MS WILSON: As close as to the 13 weeks.

PN780

MS LANGFORD: Correct.

PN781

THE DEPUTY PRESIDENT: And how do you deal with the 26 non‑consecutive weeks as the alternative then?

PN782

MR CHRISTODOULOU: It must be then ‑ ‑ ‑

PN783

MS CHAN: Or no more.

PN784

MS LANGFORD: No more than.

PN785

MR CHRISTODOULOU: Or no more.

PN786

MS WILSON: No more, and then the second assessment must take place at the conclusion of 12 months

PN787

MS CHAN: No, I thought it was within 12 months of the first assessment.

PN788

MR KEMP: Within 12 months of the first assessment.

PN789

MS CHAN: Which is what the ‑ ‑ ‑

PN790

MS WILSON: No, I'm just saying that again "within" could be any time within that 12 months.

PN791

MS LANGFORD: Technically it could be.

PN792

MS WILSON: It may be appropriate to ‑ ‑ ‑

PN793

MS LANGFORD: Yes, technically it ‑ ‑ ‑

PN794

MS FREELAND: Within a period not exceeding 12 months.

PN795

MS LANGFORD: Yes, that's better.

PN796

MR CHRISTODOULOU: The reality is, we're not going to go in and do it straightaway. Why would we do that?

PN797

MS LANGFORD: But the individual actually may ‑ ‑ ‑

PN798

MR CHRISTODOULOU: Request it.

PN799

MS LANGFORD: ‑ ‑ ‑ actually ask for a reassessment as well, so it gives them, yes, an opportunity to ask for a reassessment as well.

PN800

MS WILSON: You might not be intending to, but if it's not clear then you could, and therefore I think it should be clear. I don't think anything should be ambiguous.

PN801

MS CHAN: I think so long as it's clear and doesn't change the intent or the meaning nobody averse to that.

PN802

THE DEPUTY PRESIDENT: I'll just push this down onto one page so you can see it. I know it's all being caught on the transcript, but ‑ ‑ ‑

PN803

MR CHRISTODOULOU: From the employer's point of view, the only reason we'd bring it on earlier is if we wanted to - we'd probably still the employee more anyway. It wouldn't be - we've never regressed an employee anyway, so I'm not sure what - yes, you're thinking if an employer wants to cut the wages and do another assessment ‑ ‑ ‑

PN804

MS WILSON: No, I wasn't. What I was doing is basically saying that it should be you do your first one and then 12 months later you do your next one, not 10 months later you do your next one just because it fits in.

PN805

MR CHRISTODOULOU: Well, but 10 months actually might be a good time. If you've got 240 employees you want to do you want to be able to do it in a way that is practical. So you can't do everything all at once.

PN806

MS LANGFORD: Plus something might have substantially changed for either the individual or the employer and you want to be able to capture ‑ ‑ ‑

PN807

MS MOONEY: But you also ‑ ‑ ‑

PN808

MS WILSON: But you'd be doing that under the other clause, you wouldn't be doing that under the regular clause.

PN809

MS MOONEY: Yes, that's right, and you'd also be wanting to make sure that the first assessment that they have, like, after their initial one, they've had a chance to learn and really hone their skills and become as proficient as they can.

PN810

MR CHRISTODOULOU: And I'm presuming in all this - not that we all necessarily will be using this, but if Kairsty has her way we'd be forced to use it - the government will pay for all this reassessment.

PN811

MR KEMP: Yes, that's right.

PN812

MR CHRISTODOULOU: Yes, okay.

PN813

MR KEMP: And there's payment already under the SWS.

PN814

MR CHRISTODOULOU: So it's an ongoing thing.

PN815

MR KEMP: Yes.

PN816

MR CHRISTODOULOU: Yes, okay.

PN817

MR KEMP: The reason for this is that under the SWS as it stands the assessments are every 12 months, so this is actually to sort of say - because if this clause doesn't apply then you're going to have to do them every 12 months, and we ‑ ‑ ‑

PN818

MS LANGFORD: Correct.

PN819

MR KEMP: Yes, and it's ‑ ‑ ‑

PN820

MR CHRISTODOULOU: Yes, okay.

PN821

MS WALSH: Run out of assessors.

PN822

MS LANGFORD: Absolutely.

PN823

MS SVENDSEN: No, it wasn't that. It wasn't the issue. The issue was that in fact the concerns raised by the ADEs was that most people were more stable than that. There were some individuals that weren't, but the majority of people just didn't require reassessment every 12 months.

PN824

MR CHRISTODOULOU: Yes.

PN825

MS LANGFORD: Yes, that's correct.

PN826

MS SVENDSEN: And that was absolutely substantiated.

PN827

THE DEPUTY PRESIDENT: So can you look at the screen and - because this is guidance for James. He will probably pore over the transcript, or Rowena will, but also this is just hopefully a summary of - noting the trial period is prior to the first assessment, for the purposes of the transcript.

PN828

The first assessment must take place after 13 consecutive and no more than 26 non‑consecutive weeks of employment. The second assessment must take place within a period not exceeding 12 months after the first assessment, then after every three years or as sought by the employer - that should be "or the employee" with the boundary that it cannot happen more than four times every three years and they must be at least six months apart, and noting the assessment is conducted free of charge to the ADE. The federal government pays the assessors.

PN829

MR CHRISTODOULOU: Can I just raise one other issue? Will this clause feature in the award? What happens in the event that we're planning to get the assessment done but there are - just getting back to the issue raised, the assessors don't show - or we can't get assessors. Now, is that going to put us in breach of the award?

PN830

MS LANGFORD: Yes (indistinct) breach, yes.

PN831

MR CHRISTODOULOU: I mean, if we had something there that as employers we're making all the reasonable attempts to get the assessment done but all of a sudden the government has not put the resources in to allow us to get assessments - we don't want to be in breach of the award. So I'm not sure how you put that in, but ‑ ‑ ‑

PN832

MS WALSH: Could I just perhaps build on that? If we look at what happened with outlawing the BSWAT, the problem there with getting everyone to move from one tool to another was an inability from a low base to get the right number of assessors to do it within the time‑frame. So basically they were in breach of - I don't know, something, but anyway, they were in breach of something.

PN833

MS SVENDSEN: Implementation is really - like, if there's an implementation phase required then that's easy enough to put in, a transitional or implementation timetable. So in looking at the clause you have to look at this is already existing as opposed to being implemented and then if we need an implementation thing you put in an implementation timetable that allows for all of those exact concerns, but that doesn't mean you change the ongoing provision. If it's an ongoing concern that's something we need to address.

PN834

MS CHAN: Yes, I think it is an ongoing concern.

PN835

MR CHRISTODOULOU: Yes. Mine is more the ongoing issue.

PN836

MS SVENDSEN: Yes, I know.

PN837

MS WALSH: Yes, it is.

PN838

MR CHRISTODOULOU: It's not the implementation.

PN839

MS LANGFORD: It is, yes.

PN840

MS WALSH: I would say it would always be an ongoing concern. If you look at the tyranny of distance that faces Australia - and I think that that's also relevant to the final clause, where the federal government agrees to pay the assessment, but does that figure that you pay for the assessment, does that include transport costs? Because some of those assessors would have to travel quite considerable distances.

PN841

MS WILSON: It doesn't include the transport costs. I can tell you that now.

PN842

MS WALSH: Yes.

PN843

MS WILSON: And it doesn't include, from what I understand, the accommodation costs. That's all ‑ ‑ ‑

PN844

MS LANGFORD: That's right.

PN845

MS WALSH: So that's an extra cost for the ‑ ‑ ‑

PN846

MS LANGFORD: Correct.

PN847

MS WILSON: For the assessor.

PN848

MS WALSH: ‑ ‑ ‑ service provider.

PN849

MS WILSON: No, no ‑ ‑ ‑

PN850

MS WALSH: The assessor.

PN851

MR CHRISTODOULOU: Yes.

PN852

MS WILSON: The assessor.

PN853

MS WALSH: Sorry, I'm seeking guidance. So the assessor ‑ ‑ ‑

PN854

MS WILSON: For the assessor, yes.

PN855

MS WALSH: ‑ ‑ ‑ has to build that into the price they charge the federal government.

PN856

MS WILSON: No, there's a set amount that they get per assessment that they do. So it obviously would be much better for them to go and do a number of assessments at the one place than to do one or two. It would be far more cost effective, wouldn't it, if they were going to do a dozen, for example, than to do one.

PN857

MS WALSH: Undoubtedly, but that's not what happens now.

PN858

MS WILSON: I understand that's not what happens now, but if an ADE moves across we are talking about a number of assessments that are going to happen. We're not talking about one or two ‑ ‑ ‑

PN859

MS WALSH: No.

PN860

MS WILSON: ‑ ‑ ‑ as it is in open employment, we are talking about the whole ADE moving across to it. Just the point in regard - not exceeding 12 months, that's still - that would, I think, bring in Chris's concern that if you couldn't get somebody ‑ ‑ ‑

PN861

MS LANGFORD: Yes.

PN862

MS WILSON: I still think it needs to be at the conclusion of 12 months, because that gives you that 12‑month period, and, I mean, that does allow for a bit of - if you can't get an assessor exactly - you know, within that 12‑month period.

PN863

MR KEMP: We're happy to look and see whether there's something that we can do that basically means that if every effort has been made and it's outside everyone's control you're not penalised for something beyond your control.

PN864

MR ROGERS: Kairsty, at the conclusion that takes into account the variability of us taking on those - the new assessment, because like you said, we're not all going to be able to assess all of our employees at once, so at the conclusion - what I'm saying is the conclusion most probably works better, because otherwise we'll be just - the assessors will be flooded with people to be assessed.

PN865

MS WILSON: Everybody at once, yes.

PN866

MR ROGERS: So that will stagger it.

PN867

MS WILSON: Yes, but also in implementing this, I mean, there is that - what we haven't talked about, because until hopefully this - I mean, obviously we would like to see all ADEs use this, which would mean that there could be a roll‑out of the training of more assessors to the standard that we would expect them to be at, that there'd be modules, there would be accredited assessors doing it, there would be benchmarks right around Australia. So all of that is by the bye, because that's not what we're at at this stage.

PN868

So talking about there not being enough assessors, well, certainly the discussions that we had with Sharon and Walter are that there are quite a number of assessors who are at a very high level who could go and do these assessments and be consistent around Australia as long as obviously you've got your benchmarks that are consistent too.

PN869

MR CHRISTODOULOU: Makes sense.

PN870

MS WILSON: But there would need to be training, obviously, to be able to reach the demand.

PN871

MS LANGFORD: Sorry, probably one of the things that I'd like to put on record is the fact at the moment there are only 5,000 people being assessed under SWS and so if potentially we're going to go to 20,000 I don't think we've got enough assessors. So the training will - yes, it will have to be ‑ ‑ ‑

PN872

MR KEMP: Just in terms of this, all we're doing is adding these variations into the award.

PN873

MS LANGFORD: Yes.

PN874

MR KEMP: We're not mandating that everyone move to this.

PN875

MS WILSON: Correct.

PN876

MR KEMP: And we're not anticipating, given the comments of the Commission, that everyone's going to move straightaway either.

PN877

MS LANGFORD: Yes, but I just do think it needs to be noted that to upscale to that level, that, yes, we have got some good assessors and, I agree, we've got some who aren't, but it's the actual sheer number. It's not the actual quality, it's the actually the sheer number of assessors that we would need.

PN878

MS WILSON: Look, we have had that discussion with Walter and Sharon and they think that there is not - there are a number that could cover that. Obviously they are aware of the numbers, but they believe that it wouldn't take much to get the assessors that are around there to be able to do that number.

PN879

THE DEPUTY PRESIDENT: Undoubtedly that's where your transition - your (indistinct) transition period.

PN880

MS WINTER: Absolutely.

PN881

MS SVENDSEN: We've got bigger problems than that number in other areas.

PN882

THE DEPUTY PRESIDENT: Now, could we break? It's 10 past 1 and my daughter has arrived. Grace has gone to get her. So could the ADEs look at this question of the 12.5, 12.2 over lunch? It would be nice to get a landing on that.

PN883

MS WILSON: Yes.

PN884

MS SVENDSEN: Yes.

PN885

THE DEPUTY PRESIDENT: The other things that are still uncertain really rely upon the redrafting process, I think, and particularly the input of Sharon and Walter for the comfort of Kairsty, in particular, in relation to the 20 per cent. So we're probably not going to be able to get a landing on those today, but if we could get a landing on the 12 point something, or 12 or 13, rounded up, consistent with the thought in the provision, then that would be good, and then that would mean we could leave the drafting to James and we could move on to another issue. All right. So 2 o'clock still works for me if you'd like to make it still 2, even though we're just ‑ ‑ ‑

PN886

SPEAKER: (Indistinct)

PN887

THE DEPUTY PRESIDENT: No, it's okay. No, I won't need the whole time. It was just that I knew she was coming around 1 and there was something - there's something in my mind about 1.30 to 2, but I've got a funny feeling that's my constraint tomorrow. I think I might be overloading myself with all of these - the work-family interface. I think I'm all right, so 2 o'clock. Back at 2 o'clock.

PN888

MR CHRISTODOULOU: Should we go to Woolies next door? Is there somewhere to sit at that Woolies place?

PN889

MS CHAN: No, not really.

PN890

MS LANGFORD: Can we come back here - could we get lunch and bring it - and come back here.

PN891

THE DEPUTY PRESIDENT: Of course, yes. Well, there actually is a nice place to sit in Woolies. You probably just haven't found it - just speaking off the record now. It's upstairs.

LUNCHEON ADJOURNMENT�� [1.13 PM]

RESUMED�� [2.10 PM]

PN892

THE DEPUTY PRESIDENT: So prior to the lunch break we asked the ADEs to consider the minimum rate currently expressed as a percentage, and the current range of possibilities were anything from 12.19 to 12.6, but we shouldn't be bound by two extremes of the respective positions, so if someone wants to come up with an alternative that's not even expressed as a percentage there should be room for that alternative to be expressed, but I did ask you to have a think about it, so what was the outcome, Kerrie?

PN893

MS LANGFORD: Look, can I just maybe recall our conversation last week, which was without prejudice. When I actually did the calculation I said at the time I didn't have a calculator, and what I basically had said was that the minimum floor in the SWS at this point of time is $82. What we did was we divided that by 38, which is your normal working week, which equals $2.16 an hour, which equates to 12.2 per cent of ‑ ‑ ‑

PN894

THE DEPUTY PRESIDENT: $17.70.

PN895

MS LANGFORD: 12.2 per cent of the 17.70, and it was just that I got the percentage wrong, but that was the actual formula I actually did give last week. So I'd just like that to be back on record, because that was - I just had the percentage wrong. My apologies. It was in my head calculation.

PN896

THE DEPUTY PRESIDENT: So then was the consideration of the ADEs over lunch that you'd like to maintain that formula, or in the spirit of consensus building was there another figure that you'd be willing to consider?

PN897

MS LANGFORD: Part of the dilemma is because I act on behalf of our members it means then I'll need to go back and consult, but my intent last week was when I put that 12.6 per cent out it was purely a back of the hand calculation. It was based on the formula which was the 82 divided by 38. That was what I had intended, and my apologies that I miscalculated in my head.

PN898

THE DEPUTY PRESIDENT: Kairsty, from your point of view - because I don't know that Leigh's particularly agitating this concern. From your point of view, is it simply that more is better?

PN899

MS WILSON: I guess that I queried last week too, because I thought, "All right, how did you get that figure if it's 12.6?" It must have been before last week, because this was presented to us last week. So you must have come up with that calculation last week, because ‑ ‑ ‑

PN900

MR KEMP: No, we just had X per cent last week.

PN901

MS LANGFORD: No. Yes.

PN902

MS WILSON: Did you?

PN903

MS LANGFORD: Yes, absolutely. Yes, absolutely.

PN904

MR KEMP: Yes. We only took that 12.6 out of the notes that ‑ ‑ ‑

PN905

MS WILSON: All right.

PN906

MR CHRISTODOULOU: Where you might have seen the 12 point something is in my discussion paper.

PN907

MS WILSON: No, I didn't.

PN908

MR CHRISTODOULOU: I put in there at the bottom of that discussion paper a minimum of 12.5 per cent.

PN909

MS WILSON: I guess that, you know ‑ ‑ ‑

PN910

THE DEPUTY PRESIDENT: So you just plucked yours out of the air.

PN911

MR CHRISTODOULOU: No, I didn't. Mine was actually based on what I do at Greenacres.

PN912

THE DEPUTY PRESIDENT: I see, yes.

PN913

MS WILSON: I guess my concern is that last week I queried it and I said I couldn't quite work out why when the way that James had worked it out as which - 12.2 might come to that, but when you said 12.6 I thought, "Well, that's better. Okay, that's fine, but please tell me how you got to that figure." All right, you calculated that ‑ ‑ ‑

PN914

MS LANGFORD: In my head.

PN915

THE DEPUTY PRESIDENT: It's on the screens, yes.

PN916

MS WILSON: ‑ ‑ ‑ in your head, however I would - no, I think that, yes, more is better. I mean, we're not talking about a huge difference, obviously, between it, but ‑ ‑ ‑

PN917

THE DEPUTY PRESIDENT: So if more is better then and you're asking the ADEs to decouple the minimum from the mathematical formula then is there a different figure or is there even a different way?

PN918

MS WILSON: I actually thought that they had decoupled it from how James had worked it out, because it didn't work out the way that ‑ ‑ ‑

PN919

THE DEPUTY PRESIDENT: So 12.6 would be a really strange figure to come to if you had no reason to come to it.

PN920

MS LANGFORD: And this was the rationale.

PN921

THE DEPUTY PRESIDENT: So if you were going to decouple you'd do something like 12.5 or 13 or something like that.

PN922

MS WILSON: See, and that's what I thought that they must have done. I just thought, well, how can you get 12.6, but okay.

PN923

THE DEPUTY PRESIDENT: I presume that on the other side of the interest spectrum it's a very, very small number of occurrences that it would ever need to be invoked.

PN924

MS LANGFORD: Yes, correct. Correct.

PN925

THE DEPUTY PRESIDENT: So that's of perhaps less significance to the ADEs, more significance to the individual for whom it is invoked.

PN926

MS LANGFORD: Yes.

PN927

THE DEPUTY PRESIDENT: I think what you're saying, Kerrie, is that if you are to be pressed on a higher minimum when you would want to consult with ADEs.

PN928

MS LANGFORD: Primarily because in some of our proposals that we put ahead throughout when we've been putting things on the table and negotiating with the department and we put a few different things to the department. We've actually used that initial figure that I used, that 12.2, so when we did our living income proposal that's what's actually been out to our broader membership, and as I said, back of the head calculation. Sorry. Made a mistake. So I would need to go back.

PN929

MS CHAN: If I can also just add to what Kerrie said, I don't believe there is an intention by the ADEs to depart from how the minimum is actually being calculated at the moment. If we also take a look at the minimum weekly payment figure of $82 and we compare that to the actual minimum wage for a grade 1 employee under this award as well the figure also does come out to 12.189, which is essentially where we've landed with the 12.2.

PN930

MS WILSON: Yes. Unfortunately, the - well, unfortunately - fortunately the majority of the employees are grade 2 or above, okay, so I don't quite know where ‑ ‑ ‑

PN931

THE DEPUTY PRESIDENT: That makes the percentage even less.

PN932

MR KIRKHAM: That makes the percentage less.

PN933

MS LANGFORD: Yes, that's right. That makes the percentage less.

PN934

MS WILSON: That's right, but I don't quite know why you're going back to grade 1 when they're not grade 1. So I think that argument needs to come out.

PN935

MR KIRKHAM: But it makes the percentage ‑ ‑ ‑

PN936

MS LANGFORD: It's less, yes. It would pay them less.

PN937

MR ROGERS: But isn't - but, Kairsty, isn't ‑ ‑ ‑

PN938

MS WILSON: It might pay them less, I understand that, but they're still grade 2 employees, and I ‑ ‑ ‑

PN939

MR CHRISTODOULOU: See, a lot of the - can I just ‑ ‑ ‑

PN940

MS WILSON: Yes, let's round it up then. If we're going to use rounding up to whole figures, let's make it 13 per cent.

PN941

THE DEPUTY PRESIDENT: Chris, you wanted to say something?

PN942

MR CHRISTODOULOU: No, I was just going to say that a lot of - I'm not saying this for Greenacres, but a lot of ADEs actually during their assessment period - and we did - and this is actually in the original Greenacres tool that's actually referred to in the award, do actually do the assessment period under grade 1 and then after that assessment period then they'll either go to - they'll then be - the percentage will then go to grade 2.

PN943

MS WILSON: We're not talking about the assessment period, we're talking about those that are at the minimum wage. It's not the assessment.

PN944

MS LANGFORD: It's the minimum wage. The minimum wage, correct.

PN945

MR CHRISTODOULOU: Okay.

PN946

THE DEPUTY PRESIDENT: Can you just tell me, does that $82 change regularly?

PN947

MS WILSON: Yes.

PN948

THE DEPUTY PRESIDENT: It changes with the first annual wage review.

PN949

MS LANGFORD: Absolutely.

PN950

MS MOONEY: Which I think is why we started to look at a percentage.

PN951

MS LANGFORD: That's right, because they go up.

PN952

THE DEPUTY PRESIDENT: Is it with the annual wage review?

PN953

MS MOONEY: Yes.

PN954

MR KEMP: Yes, it is, and it is linked. That $82 is actually the rate that at the time of the minimum wage review is the threshold at which DSP starts to taper. So it actually has no bearing on employment conditions or anything, but it is what's set.

PN955

THE DEPUTY PRESIDENT: Yes.

PN956

MR KEMP: Which is why we want to sort of decouple that.

PN957

THE DEPUTY PRESIDENT: So what if you were just to say one‑thirty eighth of ‑ ‑ ‑

PN958

MS SVENDSEN: I will just say the annual wage review always asks us about the rate.

PN959

THE DEPUTY PRESIDENT: Yes. What if you were just to say one‑thirty eighth of the rate at the time?

PN960

MS WILSON: That was suggested too and that was - the percentage was ‑ ‑ ‑

PN961

MR KEMP: So the Commonwealth didn't want to go down that road and keep the link to the DSP rate.

PN962

THE DEPUTY PRESIDENT: I see.

PN963

MS LANGFORD: Yes.

PN964

THE DEPUTY PRESIDENT: I see, yes.

PN965

MS WILSON: The other thing is that it's inconsistent with the implications of rounding up if you have a percentage.

PN966

THE DEPUTY PRESIDENT: Except that rounding ‑ ‑ ‑

PN967

MS WILSON: No, we are. If we're having the - we're not having any point according to what's being proposed.

PN968

THE DEPUTY PRESIDENT: But we're rounding up and down, aren't we? Aren't we rounding up and down, in which case 12.2 would become 12?

PN969

MS LANGFORD: Yes. Yes, that's right. It would become ‑ ‑ ‑

PN970

THE DEPUTY PRESIDENT: I thought you were ‑ ‑ ‑

PN971

MS WILSON: I didn't think we were. I thought it was going up to the next figure. I don't know.

PN972

MS LANGFORD: No.

PN973

THE DEPUTY PRESIDENT: The rounding conventions ‑ ‑ ‑

PN974

MS LANGFORD: Yes. So that's why we thought that this was a good ‑ ‑ ‑

PN975

THE DEPUTY PRESIDENT: I think if it's .5 or above it goes to the ‑ ‑ ‑

PN976

MR KEMP: Goes to the nearest ‑ ‑ ‑

PN977

THE DEPUTY PRESIDENT: Up, and if it's less than five it goes to the ‑ ‑ ‑

PN978

MS WILSON: That was if it was - 85, does it go - it goes down, not going up.

PN979

THE DEPUTY PRESIDENT: No, 85 goes up.

PN980

MS LANGFORD: 85 goes up.

PN981

THE DEPUTY PRESIDENT: Yes.

PN982

MS WILSON: Yes, if it was, all right, 85 - or 84 would go down, not ‑ ‑ ‑

PN983

THE DEPUTY PRESIDENT: Correct.

PN984

MS WILSON: But if it was point something it wasn't going to go down. I mean, if we're talking about 19.3 it was going to go up to 20, not - there's a big difference to 85, so I thought it was going to go up, the raw score, to the next highest round figure - I mean, because we're not talking about a great big percentage here.

PN985

THE DEPUTY PRESIDENT: Where is that dealt with?

PN986

MR KEMP: So D1.3.2(a), and it's rounded to the nearest whole percentile, which basically was ‑ ‑ ‑

PN987

THE DEPUTY PRESIDENT: Up or down.

PN988

MS WILSON: Yes. See, I took that to be up.

PN989

MR KEMP: No.

PN990

MS WILSON: Yes, all right. So I think that I'm going to go back to our - to talk, because I think we're talking about cents here, we're not talking about dollars, and that to me is ‑ ‑ ‑

PN991

MS LANGFORD: Yes, and I'm not saying that - I just need to check. So I need to go back and check with the broader membership. I can't just at this point ‑ ‑ ‑

PN992

THE DEPUTY PRESIDENT: I'm going to just try ‑ ‑ ‑

PN993

MS LANGFORD: ‑ ‑ ‑ because it's in a paper.

PN994

THE DEPUTY PRESIDENT: Obviously I'll ‑ ‑ ‑

PN995

MS SVENDSEN: You've lost your screen up the back behind you.

PN996

THE DEPUTY PRESIDENT: Have we? Okay. Yes, so Kerrie may come back and say, "Look, in the scheme of things we're willing to go to 12.5 or 13", and then that may resolve it. If she doesn't, then you're just going to have to keep talking, but we'll talk in a way that tries to narrow the differences and not expand them.

PN997

MS WILSON: I know, but as I said, we're talking about cents here, we're not talking about dollar figures, and that's ‑ ‑ ‑

PN998

THE DEPUTY PRESIDENT: No, and as I said, it's a lot different for one individual ‑ ‑ ‑

PN999

THE DEPUTY PRESIDENT: ‑ ‑ ‑ as compared to a whole ADE, so the balance of convenience, if you like, weighs in favour of your proposition, in my opinion.

PN1000

MS LANGFORD: Yes.

PN1001

THE DEPUTY PRESIDENT: But Kerrie needs to ‑ ‑ ‑

PN1002

MS LANGFORD: I need to go - yes.

PN1003

THE DEPUTY PRESIDENT: Just to, you know - yes.

PN1004

MS LANGFORD: Yes, my members.

PN1005

MS CHAN: To resolve what are similar but ‑ ‑ ‑

PN1006

MS LANGFORD: Yes.

PN1007

MS CHAN: You're in the same boat.

PN1008

MS LANGFORD: Yes, I am.

PN1009

THE DEPUTY PRESIDENT: Okay, so it's still ADEs to consider and you're also going to, I think - forget exactly how we were going to resolve this question of the word "productive output" which would then flow through ‑ ‑ ‑

PN1010

MR KEMP: The Commonwealth was just going to do the ‑ ‑ ‑

PN1011

THE DEPUTY PRESIDENT: Have a look. That's right.

PN1012

MR KEMP: (Indistinct) and see whether there was any problems with that.

PN1013

THE DEPUTY PRESIDENT: Yes. So note - thank you.

PN1014

MS WALSH: It is mentioned six times in that ‑ ‑ ‑

PN1015

MR KEMP: Yes, and we're going to change all the instances if there's no material effect.

PN1016

MS WILSON: And we will be considering that too as to - you know, in relation to that.

PN1017

THE DEPUTY PRESIDENT: Yes.

PN1018

MS WILSON: So we're not prepared to agree at this point.

PN1019

THE DEPUTY PRESIDENT: Yes, that's all right. So add to consider. All right. Shall we then park this? There's more work to be done on it and it will again be the first agenda item on the next occasion. Then my question is do we want to try and deal with some of the kind of littler things that might be able just to be put to bed, because the next big thing to do after we've dealt with the supported wage variation is to look at the panoply - panoply - do you like that word? That's right, isn't it, panoply? You know, the big, wide ‑ ‑ ‑

PN1020

MR CHRISTODOULOU: Don't know. Never heard of the word.

PN1021

THE DEPUTY PRESIDENT: The big, wide, large number of other wages tools, and I think probably to start that before we've concluded the SWS wouldn't be helpful. So in terms of the things that people want to progress there are some, I think, things that we might be able to get agreement on. I'm just finding a little list here. Just bear with me. Yes, where is it?

PN1022

Maybe it's starting with you, Margaret. Here we go. Margaret. So school-aged employees and possibly junior rates. Could you say a little bit more about - because I know you've got that document, and we've all got it - exactly what you have in mind, and can we test whether there's any real concern about that?

PN1023

MS CHAN: So essentially what we are looking at in terms of school‑aged employees is really inserting a clause. If I might take you to the first page of the draft determinations under paragraph 1, inserting that new clause proposed there at clause 4.8. I do believe that is not referenced to the exposure draft numbering so I apologise for that, but it is really just inserting those words "subject to clause 4.1" which talks about the coverage of the award. It is to clarify that the award also covers employees in those classifications listed at schedule B who are of school age and are engaged in casual supported employment ‑ ‑ ‑

PN1024

THE DEPUTY PRESIDENT: What would the circumstances be where an ADE might have a school‑aged person?

PN1025

MR CHRISTODOULOU: I'm happy to answer that. So we've just started a new program now where we're providing for the first time work experience, in the first instance. When I say "work experience", actual training for people at school with predominantly intellectual disabilities, have had no opportunity to work before and are unlikely to, or haven't been given the ability to because they don't have training, but there were some of those employees that we think are getting very close to us being able to provide them say on a Thursday night or when we open our caf� on a Saturday morning, be able to employ them as casuals.

PN1026

As you know, young people go to Woolies and Coles and McDonald's and work, and whilst we think we can pay them the supported wage under the current award, I think it would be better to absolutely make sure that it's made abundantly clear that we can.

PN1027

THE DEPUTY PRESIDENT: Okay.

PN1028

MS SVENDSEN: I don't understand why you think you need to identify that it is school‑aged - well, school kids can be paid these rates.

PN1029

MR CHRISTODOULOU: Because it talks about - under the award it does talk about being eligible for DSP. Some school kids are not on the DSP. They might be eligible but maybe they haven't applied. They certainly will be eligible for the NDIS now that the funding's going to change, but again, the award doesn't actually talk about NDIS.

PN1030

MS SVENDSEN: So how are you going to not open it up to any school‑aged kid?

PN1031

MR CHRISTODOULOU: I'm happy to put the words in that make sure that we don't, but we ‑ ‑ ‑

PN1032

MS SVENDSEN: That's why I'm asking the question. I just suddenly - I looked at it and I went - I mean, first of all I thought that you meant school rates - junior rates, but ‑ ‑ ‑

PN1033

MR CHRISTODOULOU: No, it's not the junior rates.

PN1034

MS SVENDSEN: And that was clear when you spoke about it that that wasn't what you meant, and so then the issue then would be that it's not - you're actually talking about kids that might end up working at the ADE itself further on down the track anyway.

PN1035

MR CHRISTODOULOU: Yes, or ‑ ‑ ‑

PN1036

MS SVENDSEN: They might not. They might be doing other things. I'm not saying they wouldn't, but that they themselves would fit within the criteria if they were over 18 for a DSP, probably.

PN1037

MR CHRISTODOULOU: That's right.

PN1038

MS SVENDSEN: Yes, so you're talking about those kids actually getting a chance to be employed under this when the DSP doesn't meet them because they're not yet eligible for DSP because they've not yet left home and all that sort of stuff.

PN1039

MR CHRISTODOULOU: Yes.

PN1040

MS SVENDSEN: Okay.

PN1041

MR CHRISTODOULOU: That's what I meant.

PN1042

MS SVENDSEN: Yes, all right.

PN1043

MR CHRISTODOULOU: And I'm happy if there's a set of words that the union thinks can make sure that we're doing the right thing and it's not going to be exploited, I'm happy to look at those.

PN1044

MS SVENDSEN: Yes, haven't really thought about it, but what about if we both give it a crack and see where we come to?

PN1045

MR CHRISTODOULOU: Yes, okay.

PN1046

MS WILSON: Can I just query that? So basically what you're saying is that if they are under - if they're school‑aged employees you're going to assess them under the tool as well, are you?

PN1047

MR CHRISTODOULOU: Yes, like we'd assess anyone else under the tool. Whatever that tool is that we're using at the time.

PN1048

MS SVENDSEN: And you're not talking about - school‑aged employees have different meanings in different awards. That's the issue.

PN1049

MS WILSON: Ye.

PN1050

MS SVENDSEN: But I understand - so they're not actually - they don't fit the criteria because they don't have a DSP

PN1051

MS WALSH: They don't have a ‑ ‑ ‑

PN1052

MS LANGFORD: Correct, yes.

PN1053

MR CHRISTODOULOU: You could interpret it that way, yes, because it talked about "eligible".

PN1054

MS LANGFORD: Yes, and so if you actually added some wording such as the NDIS, meeting that requirement ‑ ‑ ‑

PN1055

MR CHRISTODOULOU: Yes, that would sort it out as well.

PN1056

MS LANGFORD: ‑ ‑ ‑ that would sort that requirement out.

PN1057

MR KIRKHAM: In the future we'll change that ‑ ‑ ‑

PN1058

MS LANGFORD: Correct.

PN1059

THE DEPUTY PRESIDENT: So is that slightly different from what Margaret's proposed ‑ ‑ ‑

PN1060

MS CHAN: Probably, but ‑ ‑ ‑

PN1061

MR CHRISTODOULOU: Yes.

PN1062

THE DEPUTY PRESIDENT: ‑ ‑ ‑ which is, "Subject to clause 4.1 of the award - covers employees in the classification as listed in schedule B who are of school age and engaged in casual supported employment", and you're comfortable with looking at alternative words as long as the effect of the change is what you seek.

PN1063

MS LANGFORD: Absolutely.

PN1064

MR CHRISTODOULOU: Yes.

PN1065

MS LANGFORD: A starting point.

PN1066

MS WILSON: So how do you pay them now?

PN1067

MR CHRISTODOULOU: We don't at the moment.

PN1068

MR ROGERS: Don't apply.

PN1069

MS LANGFORD: (Indistinct)

PN1070

MR CHRISTODOULOU: But we will be soon paying them as per our current tool.

PN1071

THE DEPUTY PRESIDENT: You don't pay them or you don't have them.

PN1072

MR CHRISTODOULOU: No, at the moment we don't, but we will be putting some on soon.

PN1073

THE DEPUTY PRESIDENT: Yes.

PN1074

MR CHRISTODOULOU: It's about clarifying it in the future.

PN1075

THE DEPUTY PRESIDENT: So, Leigh, were you volunteering to have a go at drafting.

PN1076

MS SVENDSEN: I'll see what I can too, but, yes.

PN1077

THE DEPUTY PRESIDENT: Too, or?

PN1078

MS SVENDSEN: Yes. No, I just said to Chris how about we both give it a shot and see how we go.

PN1079

MR CHRISTODOULOU: Yes.

PN1080

THE DEPUTY PRESIDENT: All right. So is it that you would work together, the two of you?

PN1081

MS SVENDSEN: Yes.

PN1082

MR CHRISTODOULOU: Yes.

PN1083

THE DEPUTY PRESIDENT: Excellent, and then you would come back with a potentially recommended form of words.

PN1084

MR CHRISTODOULOU: Yes.

PN1085

THE DEPUTY PRESIDENT: Excellent. All right. Does that also deal with your issue on the junior rates, Margaret, because they do seem to be separate?

PN1086

MR CHRISTODOULOU: That's a different issue.

PN1087

MS CHAN: That is a different issue and I think there is question around whether junior rates should apply ‑ ‑ ‑

PN1088

THE DEPUTY PRESIDENT: So what is the question?

PN1089

MR CHRISTODOULOU: Yes, so that issue really is not so much - it's not so much in the - and you wouldn't apply junior rates, so I can be clear about this, to someone on supported wages, but let's say we have a person without a disability, a young person, and we are deciding to - and we have some services say in hospitality or retail, we've opened up a new enterprise - I'm not just talking for Greenacres but anyone else now, and we want to employ some juniors, we don't have junior rates to do it. So we're at a commercial disadvantage to other industries that employ people, or young people, under junior rates in those instances. So I'm not really pressing it for the manufacturing type work we do, I'm pressing it really for other areas.

PN1090

MS CHAN: For that retail, hospitality ‑ ‑ ‑

PN1091

MR CHRISTODOULOU: Yes.

PN1092

MS SVENDSEN: Surely you'd employ them under those awards then.

PN1093

MR CHRISTODOULOU: No, because they'll be our employees.

PN1094

MS WILSON: But you've got employees who aren't paid - I mean, what about your support staff, your supervisors.

PN1095

MR CHRISTODOULOU: Yes. So? What's that got to do with anything?

PN1096

MS WILSON: Well, what rate do you pay them? You don't assess them, do you?

PN1097

MR CHRISTODOULOU: Adult rates. We're not assessing the.

PN1098

MS WILSON: I know you're not assessing them. I just don't ‑ ‑ ‑

PN1099

MS MOONEY: What Kairsty's asking you is what award do you pay your supervisors under?

PN1100

MR CHRISTODOULOU: The supervisors are under the supported - this award, the SESA award.

PN1101

MS WILSON: SESA as well.

PN1102

MR CHRISTODOULOU: Our trainers actually are employed under the SCHADS award.

PN1103

MS WILSON: Right. Does that have junior rates?

PN1104

MR CHRISTODOULOU: No, but I'm not talking about ‑ ‑ ‑

PN1105

MS WILSON: I know you're not talking about it ‑ ‑ ‑

PN1106

MR CHRISTODOULOU: But ‑ ‑ ‑

PN1107

MS WILSON: ‑ ‑ ‑ but what I'm saying to you is that why - I don't quite understand why you're differentiating ‑ ‑ ‑

PN1108

MR CHRISTODOULOU: I am differentiating because in the past we've only ever had a packaging and assembly type model. We are going to be moving into other areas such as the service industry where we actually want to be able to provide a greater choice of work for people with disabilities. Part of that might be that we also want to engage some young people in that work. They won't be the supervisors or the trainers of the people with disabilities but they might also be young people that work alongside people with disabilities.

PN1109

MS WALSH: Co‑workers.

PN1110

MS WILSON: And what about if you employ casuals to work alongside them? You pay them under the SESA award as well, do you?

PN1111

MR CHRISTODOULOU: Yes, because we can pay them now under the SESA award, because the SESA award contemplates a whole range of different industries. It's a classification structure that is very different to any other award.

PN1112

THE DEPUTY PRESIDENT: Just remind me, and this is probably looking to Margaret and Leigh, has there been any kind of AMOD determination on junior rates? Is there anything in the common issues on junior rates?

PN1113

MS CHAN: Not that I'm aware of.

PN1114

THE DEPUTY PRESIDENT: Are they settled at the moment? Is there any prospect of them being shifted?

PN1115

MS SVENDSEN: I don't believe so. I think that the move is to take junior rates out of awards rather than putting them in.

PN1116

MR CHRISTODOULOU: So when you say ‑ ‑ ‑

PN1117

MS SVENDSEN: But that's been - there are some awards there are applications to remove them and there are lots of awards that just don't have junior rates.

PN1118

MR CHRISTODOULOU: Yes.

PN1119

MS SVENDSEN: That's all I would say about it, and it's not particularly affected our awards. The reason it doesn't particularly affect our awards is that 90 per cent of the people who are employed actually have to have minimum qualifications so junior rates are never required.

PN1120

MR CHRISTODOULOU: Yes. I would actually - and this is only me. I would only press this with respect to it only applying in those service industries where it does apply - so retail, hospitality.

PN1121

MS MOONEY: They have junior rates, don't they?

PN1122

MR CHRISTODOULOU: Well, they do, but ‑ ‑ ‑

PN1123

MS SVENDSEN: If they've got junior rates then you can employ them under those awards if you've got ‑ ‑ ‑

PN1124

MR CHRISTODOULOU: Yes, but we don't. As an employer we're bound to pay under this award unless you want to start to change a whole range of other things about application and coverage. So we pay under this award.

PN1125

MS SVENDSEN: If you're running a caf� or - so you're running that sort of thing ‑ ‑ ‑

PN1126

MR CHRISTODOULOU: Yes.

PN1127

MS SVENDSEN: ‑ ‑ ‑ there's nothing that says you have to pay under SESA and not use the hospo award.

PN1128

MR CHRISTODOULOU: Except we use our wage assessment tool under this award.

PN1129

MS WILSON: Yes, but you're not assessing them, because you just said - you just told me ‑ ‑ ‑

PN1130

MR CHRISTODOULOU: No, no ‑ ‑ ‑

PN1131

MS WILSON: That's what I asked you, are you intending to assess them.

PN1132

MR CHRISTODOULOU: Okay. All right. So what you're saying, Leigh - and I'm happy, if the union wants to write me and say that it's legally kosher to do this, that if we run ‑ ‑ ‑

PN1133

MS SVENDSEN: You've got an industry that is a hospo industry there's nothing that precludes it. If you read the coverage clauses in relation to those awards there is nothing that would preclude it.

PN1134

MR CHRISTODOULOU: Okay.

PN1135

MS SVENDSEN: There's nothing that says you have to because of your other - because you are an ADE, but there is nothing that would preclude you using that award.

PN1136

MR CHRISTODOULOU: Okay. So what if our EBA though has rates of pay which are greater than the retail award.

PN1137

MS SVENDSEN: The EBA is not the question here, because that's not been contemplated when you did the EBA. So that's a ‑ ‑ ‑

PN1138

MR CHRISTODOULOU: We should talk about - I'm happy to talk about it. If there's another way of resolving this issue I'm happy to look at it. I just want to resolve the issue, really, so that we can make sure that we can provide as many opportunities as possible and be able to compete.

PN1139

MS WALSH: May I just ask a question through your Honour to Chris?

PN1140

THE DEPUTY PRESIDENT: Of course.

PN1141

MS WALSH: Just in relation to your business enterprise, so that I've got my head around it, we've got a business that you're going into that is a new part of what you want to do and you want to be able to employ people with a disability with co‑workers who do not have a disability.

PN1142

MR CHRISTODOULOU: Yes.

PN1143

MS WALSH: And are you looking for a rate that covers all of them?

PN1144

MR CHRISTODOULOU: No, the reality will be predominantly our - what we would do right at this moment is we would employ them under our award, our EBA.

PN1145

MS WALSH: Yes.

PN1146

MR CHRISTODOULOU: And at the moment we wouldn't employ any juniors. If we wanted to - it would probably be better that we don't, because we might as well get adults to do it. There are no junior rates in the award.

PN1147

MS WALSH: Okay. So administratively You want to use the one wage set‑up for both. Am I getting this correct?

PN1148

MR CHRISTODOULOU: No.

PN1149

MS WALSH: So in other words, if you're using SESA for your disabled workers within your caf�, say, you don't want to have to pay - because the SESA has to have ‑ ‑ ‑

PN1150

MR CHRISTODOULOU: Administratively it's easier to pay under one instrument than have different instruments.

PN1151

MS WALSH: That's what I mean. So you might be in a situation where you pay your disabled workers under this one and you may have to go - unless you get something in there ‑ ‑ ‑

PN1152

MR CHRISTODOULOU: Yes. Well, our arrangements at the moment is we cover - we employ our supervisors and our people with disabilities under the one arrangement.

PN1153

MS WALSH: Under the one arrangement.

PN1154

MR CHRISTODOULOU: Yes.

PN1155

MS WALSH: Okay, thank you.

PN1156

MR CHRISTODOULOU: They're not segregated in any way.

PN1157

MS CHAN: And I think it's important to point out that there is no - like, because the ‑ ‑ ‑

PN1158

MS WALSH: There's nothing in it ‑ ‑ ‑

PN1159

MS CHAN: ‑ ‑ ‑ SESA doesn't preclude us from employing these types of individuals under the award as it stands at the moment, anyway.

PN1160

MS WALSH: No.

PN1161

MS CHAN: If we look at - I'm sorry, but I have to refer to the non‑exposure draft numbering, but clause 4.7, for instance. Where an employee is covered by more than one award, for instance, retail and SESA, the employee is going to be covered by the classification which is most appropriate to the work being performed by the employee. So that's one consideration, but the second consideration is actually the environment in which the employee normally performs the work, and if the set‑up is in an ADE, not as - not in a for profit caf� enterprise, for instance, then surely that has some weight.

PN1162

MS WALSH: So you want some consistency there.

PN1163

MS CHAN: Absolutely.

PN1164

MS WALSH: I guess that was what I was trying to say in a bad way.

PN1165

THE DEPUTY PRESIDENT: So how are you going to progress this? What's the plan?

PN1166

MR CHRISTODOULOU: I think probably the best way is I'm happy to talk to Leigh to get some - I mean, I think the claim stays as it is.

PN1167

MS CHAN: Yes.

PN1168

MR CHRISTODOULOU: I think there's ‑ ‑ ‑

PN1169

MS SVENDSEN: I don't think it will help, really, Chris, because you're trying to fix your problem but the application is to put it in the award, so that's a different question.

PN1170

MR CHRISTODOULOU: Yes. No, well, that's what I mean.

PN1171

MS SVENDSEN: Yes.

PN1172

MR CHRISTODOULOU: The claim is in for the moment, but let's just see by fixing up - by clarifying what you can do outside the award, if you can move to say a retail or a hospitality award in certain circumstances, there may not need to be a need to progress that element of the claim, but I need to explore that a bit more with you.

PN1173

THE DEPUTY PRESIDENT: Okay. You two have got a burgeoning agenda now for meetings coming up.

PN1174

MS CHAN: We'd like to be involved in that as well.

PN1175

MR CHRISTODOULOU: Yes, absolutely.

PN1176

THE DEPUTY PRESIDENT: Okay. So Chris, Margaret - because I'll go through the notes and when we come back I'll say - we'll make a list of all the things that were meant to be done and ask you how you've progressed. All right. What's next on your list, Margaret?

PN1177

MS CHAN: There's a couple of wage assessment issues which given the time is now 20 to 3 I don't think we should get into today. Why don't we look at some of the low‑hanging fruit?

PN1178

THE DEPUTY PRESIDENT: Yes. So what about - I mean, the penalty rates might be a biggie, but what about the applicability of night‑shift rates where working night‑shift only? Is this actually realistic? Would an ADE employ a person on a night‑shift?

PN1179

MR CHRISTODOULOU: Yes, there's a peculiar clause in here about what constitutes a night‑shift - in fact, I don't even know if there is an actual - I haven't got the - have you got the exposure draft?

PN1180

MS LANGFORD: Yes.

PN1181

MR CHRISTODOULOU: Have you got the shift clauses in there?

PN1182

MS LANGFORD: They should all be in here.

PN1183

MR CHRISTODOULOU: 21. "An employee who works their ordinary hours of shift which finishes after 6 pm and at - before midnight, will be paid" - that's okay.

PN1184

THE DEPUTY PRESIDENT: If somebody can say what the clause is in the exposure draft that will be helpful.

PN1185

MS CHAN: It was the old 20.5 ‑ ‑ ‑

PN1186

MS LANGFORD: Yes, so ‑ ‑ ‑

PN1187

MS CHAN: So, "By agreement between an employer and an employee ‑ ‑ ‑"

PN1188

MR CHRISTODOULOU: So what are we actually saying there? What's the actual ‑ ‑ ‑

PN1189

MS CHAN: Sorry, I can't point everybody out to the exposure draft just quickly, but if I look at the old - or the current award, it is 20.5, clause 20.5, which begins:

PN1190

By agreement between an employer and an employee an employee who works their hours in a rotating roster shift which finishes after 12 midnight or at or before 8 am Monday to Friday will be paid for the whole shift 30 per cent more than their ordinary rate.

PN1191

Now, I guess practically where we've come from is an ADE will generally have their people on a fixed day shift or, if they are going to operate a night‑shift, it will generally be a fixed night‑shift. There generally won't be that much variation to have the sort of on a rotating roster.

PN1192

MR CHRISTODOULOU: Yes.

PN1193

MS CHAN: The amendment is actually aimed at - it actually benefits employees, because there is no longer, I guess, this entry threshold ‑ ‑ ‑

PN1194

MS WALSH: (Indistinct)

PN1195

MS CHAN: ‑ ‑ ‑ that they must be working a rotating roster to actually receive the 30 per cent shift penalty entitlement.

PN1196

MR CHRISTODOULOU: No, that's in our agreement.

PN1197

THE DEPUTY PRESIDENT: So you would like to remove the rotating element and simply say, "Look, if you're working day shift it's this." Obviously it's the wage. Night‑shift or - is there an afternoon shift as well as a night‑shift?

PN1198

MR CHRISTODOULOU: There is, the first one.

PN1199

THE DEPUTY PRESIDENT: Right.

PN1200

MS CHAN: Yes, but that doesn't contemplate a rotating roster.

PN1201

THE DEPUTY PRESIDENT: Rotating, no.

PN1202

MS SVENDSEN: It's unusual wording in terms of roster provisions that come, I think - it's unusual wording for a lot of things, but not for - I think it's a manufacturing clause. That's the ones I ‑ ‑ ‑

PN1203

MR CHRISTODOULOU: Yes. Well, this sort of comes out of manufacturing.

PN1204

MS SVENDSEN: Yes. They're the ones that I can remember that look like that.

PN1205

THE DEPUTY PRESIDENT: What is actually the amount of the loading, just as a matter of interest?

PN1206

MS CHAN: 30 per cent.

PN1207

THE DEPUTY PRESIDENT: Okay. Interesting.

PN1208

MR CHRISTODOULOU: Afternoon shift is at 15 and night‑shift is 30, yes.

PN1209

THE DEPUTY PRESIDENT: So would the ADEs be comfortable just to keep the 30 per cent for any night‑shift which is - shifts.

PN1210

MR CHRISTODOULOU: Yes.

PN1211

THE DEPUTY PRESIDENT: So would there be any - is there any difficulty with that from the advocates and unions? It actually increases the number of people who would fall into the category.

PN1212

MS SVENDSEN: Yes, I don't think it applies to anyone, but I ‑ ‑ ‑

PN1213

THE DEPUTY PRESIDENT: It's hard to believe that you would, but ‑ ‑ ‑

PN1214

MS SVENDSEN: But, you know, nonetheless I don't think - I mean, I think it's actually an artifice of the modernisation process. It's just one of the things that happens a bit.

PN1215

THE DEPUTY PRESIDENT: Yes. It's about that sort of consistency.

PN1216

MS CHAN: Yes. If anybody was looking at the proposed wording it is actually at, I guess, draft determination 6 which is on the last page of the draft determination which was sent out. So it is just the addition of the words "rostered hours of work" between an employee who works there - the new words "rostered hours of work" or hours in a rotating roster shift. So then that just provides the ability for somebody obviously on a fixed shift or a roster shift cycle who finishes between those unsociable hours, as we'll call them, to receive that loading.

PN1217

THE DEPUTY PRESIDENT: Can I put agreed in principle?

PN1218

MR CHRISTODOULOU: Yes.

PN1219

THE DEPUTY PRESIDENT: Which under my rules doesn't mean that you have to stay agreed, but for now. Good. Excellent. So the question of the ‑ ‑ ‑

PN1220

MS CHAN: Yes, the penalty rate.

PN1221

THE DEPUTY PRESIDENT: The penalty rates, is that too big to handle now, or is it not? I mean, it's about consistency, I presume, with the Full Bench decision, which of course is uncertain.

PN1222

MS CHAN: No, it's actually slightly different.

PN1223

MR CHRISTODOULOU: No, it's actually - can I just say ‑ ‑ ‑

PN1224

THE DEPUTY PRESIDENT: It's not?

PN1225

MR CHRISTODOULOU: ‑ ‑ ‑ this wasn't contemplated at all as part of the recent Full Bench decision, I've got to say.

PN1226

MS LANGFORD: No.

PN1227

THE DEPUTY PRESIDENT: Right.

PN1228

MR CHRISTODOULOU: Not at all.

PN1229

MS LANGFORD: No.

PN1230

MR CHRISTODOULOU: This was simply back to this issue of ‑ ‑ ‑

PN1231

MS LANGFORD: Hospitality and retail workers.

PN1232

MR CHRISTODOULOU: ‑ ‑ ‑ hospitality and retail, because at the moment ‑ ‑ ‑

PN1233

MS LANGFORD: There are different penalty ‑ ‑ ‑

PN1234

MR CHRISTODOULOU: ‑ ‑ ‑ we're sort of applying - we could be applying ‑ ‑ ‑

PN1235

THE DEPUTY PRESIDENT: I see.

PN1236

MR CHRISTODOULOU: ‑ ‑ ‑ manufacturing rates.

PN1237

THE DEPUTY PRESIDENT: Yes.

PN1238

MR CHRISTODOULOU: Having said that - yes, so it's really just getting a level of consistency. It wasn't really about the current federal - - -

PN1239

THE DEPUTY PRESIDENT: But, in effect, it would be, wouldn't it, because ultimately if those awards are varied and - - -

PN1240

MR CHRISTODOULOU: Yes, well, if that ends up - yes.

PN1241

THE DEPUTY PRESIDENT: You don't yet know what the phase‑in period is going to be, et cetera.

PN1242

MR CHRISTODOULOU: Yes.

PN1243

THE DEPUTY PRESIDENT: So the principle you're driving for - just to see whether the employee advocates and the unions could give a response to this - is that you would like the penalty rates in the SESA to be in line with those in retail and hospitality?

PN1244

MR CHRISTODOULOU: Yes.

PN1245

MS CHAN: Only where individuals are working.

PN1246

MR CHRISTODOULOU: In those industries.

PN1247

THE DEPUTY PRESIDENT: In retail and hospitality.

PN1248

MR CHRISTODOULOU: Yes, not in any other - - -

PN1249

THE DEPUTY PRESIDENT: And do you think that - - -

PN1250

MS SVENDSEN: Not a snowflake's chance in hell am I going to agree with that.

PN1251

THE DEPUTY PRESIDENT: I did say that we would get a reaction and we appear to have got one.

PN1252

MS SVENDSEN: I'm just saying what UV and my attitude and position would be in relation to that.

PN1253

MR CHRISTODOULOU: Yes, and I can understand that.

PN1254

MS SVENDSEN: Especially given the contemplation of whether or not that matter is appealed, the Federal Court is still - - -

PN1255

MR CHRISTODOULOU: Can I just ask this question, Leigh: if we wanted the penalty rate regime that was in place prior to that decision, would you have a different view about that?

PN1256

MS SVENDSEN: I'm not sure that the penalty rates stuff differs substantially, but I haven't looked at it, Chris.

PN1257

MR CHRISTODOULOU: Yes, okay. As I said, that had nothing to do with the recent decision, but given what you have said about those awards being able to apply in the future, anyway, you know, it's sort of - anyway, it's a discussion we'll have.

PN1258

THE DEPUTY PRESIDENT: So "not comfortable with this" would be the kind of diplomatic - and that clearly is because they're going down, Leigh.

PN1259

MS SVENDSEN: Mm‑hm.

PN1260

THE DEPUTY PRESIDENT: So what are you going to do? ADEs have got that claim hanging out there. You can either decide to explore that other issue of whether those other awards apply, anyway. If they do, the need for this goes away. If they don't, you might come back to the table or you might not. The ball is in your court.

PN1261

MR CHRISTODOULOU: Yes, and I suppose it also depends on, you know, how the unions generally decide to deal with that decision. If they do appeal, there might be a stay put on it. Who knows? It wasn't driven by that and it's not driven by wanting to reduce people's rates.

PN1262

THE DEPUTY PRESIDENT: No.

PN1263

MR CHRISTODOULOU: Because we're only wanting it for those industries that we want to go in and compete against to provide a different employment environment to the ones that we currently have.

PN1264

THE DEPUTY PRESIDENT: All right. Well, we'll just leave it there as having been discussed, but not obviously agreed, and see what else we've got on our list. Margaret, that exhausts you, except for the difficult question.

PN1265

MS CHAN: That's all (indistinct) yes.

PN1266

THE DEPUTY PRESIDENT: Yes. Kerrie?

PN1267

MS LANGFORD: I don't know how - if mine are (indistinct) I think there is going to be - - -

PN1268

THE DEPUTY PRESIDENT: What about this whole definition on eligibility? Do you want to expand a little bit more on that and take us to the part of the award and so on that actually covers it? Are the two things related, those two points?

PN1269

MS LANGFORD: No, they're a little bit different.

PN1270

THE DEPUTY PRESIDENT: Right.

PN1271

MS LANGFORD: First of all, if we talk about the employer definition to the award - and I'm not sure which section it actually referred to.

PN1272

MS SVENDSEN: The coverage - - -

PN1273

MS LANGFORD: Coverage, yes.

PN1274

THE DEPUTY PRESIDENT: So that's what it is.

PN1275

MS LANGFORD: Which is - this is not the exposure draft. Okay. I suppose one of the concerns going forward is that as Australian Disability Enterprises' funding moves from being under the Disability Services Act and actually moves to the NDIS, we want to make sure that organisations are still able to refer to the SESA Award going forward in perpetuity basically. That's our concern. That definition needs to change so that employers actually can refer to the Act.

PN1276

THE DEPUTY PRESIDENT: So specifically in relation to coverage, let's have a look at that and see what you think you would be asking for so we're clear. Coverage is clause 4 of the exposure draft.

PN1277

MS LANGFORD: Yes. 4.3, yes.

PN1278

THE DEPUTY PRESIDENT: 4.1 says:

PN1279

This industry award covers employers throughout Australia who operate supported employment services and their employees working in the classifications listed in Schedule A - - -

PN1280

so we're just dealing with employers at the moment.

PN1281

MS LANGFORD: That's correct, yes.

PN1282

THE DEPUTY PRESIDENT: "To the exclusion of any other modern award", and then there are a series of specific exclusions, those three awards.

PN1283

MS LANGFORD: Correct.

PN1284

THE DEPUTY PRESIDENT: So how are those words of concern?

PN1285

MS LANGFORD: It's more 4.3 that is the concern, where it says:

PN1286

"Supported employment services" means a service as defined in section 7 of the Disability Services Act.

PN1287

MS SVENDSEN: That's 4.2 under the exposure draft?

PN1288

MS LANGFORD: Yes, it is. So that's the concern, because going forward organisations won't be funded under the Disability Services Act. They will actually be funded under the NDIS and it's not services, it's actually individuals are funded. That's the dilemma.

PN1289

MS SVENDSEN: But the service would have to be defined differently in the Disability Services Act. Just because you've got people who are funded by NDIS doesn't mean you run an ADE.

PN1290

MS LANGFORD: That's the dilemma. This is where the debate is, because it's a - yes, so it's a supported employment model and I think that's the thing where we're going to be moving from the term "Australian Disability Enterprises" or "ADEs". Hence, we're not - - -

PN1291

MS SVENDSEN: In terms of names - it's not really the issue - - -

PN1292

MS LANGFORD: Yes, but the dilemma is that going forward we need to make sure that people who are current Australian Disability Enterprises actually can still utilise the award, because they're no longer funded under the DSA.

PN1293

MS SVENDSEN: Yes, I get what you're saying there.

PN1294

MS LANGFORD: Yes.

PN1295

MS SVENDSEN: No, I meant that the Commonwealth has to stop defining ADEs under section 7 of the Disability Services Act for this to no longer apply.

PN1296

MS LANGFORD: Yes.

PN1297

MR CHRISTODOULOU: That's right.

PN1298

THE DEPUTY PRESIDENT: And is that likely to happen?

PN1299

MS SVENDSEN: What I'm asking you is has it happened, is it going to happen?

PN1300

MR CHRISTODOULOU: And when is it going to happen?

PN1301

MS LANGFORD: Yes.

PN1302

MS SVENDSEN: I don't know that James and Rowena can answer that, because this is a slightly different issue than the one that they're here for.

PN1303

MS LANGFORD: Yes.

PN1304

MS SVENDSEN: I'm going to be really cagey about changing this until that changes. I know it's a bit chicken and egg - I mean, it's not going to happen overnight, so it's not as if we won't get time to do it. I understand your concern and I don't have a problem with the intent, but if we change it before the Act changes and we then open it in a way we don't intend to open it, that's my problem, all right? I kind of think we need to know what - - -

PN1305

THE DEPUTY PRESIDENT: The Commonwealth intends to do.

PN1306

MS SVENDSEN: - - - the Commonwealth is thinking doing with the DSA in terms of that.

PN1307

MS LANGFORD: Yes.

PN1308

MS SVENDSEN: Yes, and I know that - in a way it sits quite outside your stuff, because the DSA is - this part of it is not affected by the payment scheme - - -

PN1309

THE DEPUTY PRESIDENT: No.

PN1310

MR KEMP: There is going to be a quality safeguard mechanism that will need to identify what employers are - I think from a Commonwealth perspective, I recognise the intent. I think it is very important that ADEs can still access this award whatever they become in the future.

PN1311

MS LANGFORD: Yes, that's right.

PN1312

MR KEMP: I suppose from our perspective it is difficult to say, well, I know it's going to be like this in three years' time, because we're not quite there at the moment.

PN1313

MS SVENDSEN: If we need my consent at all, but can I say that we won't object to changing it when we need to change it; but I'm really cagey about changing it before we actually see what's going to happen in terms of how those things are going to be defined. At the moment you're still defined under that section of the Act even though NDIS is starting to roll out. I mean, in the areas that NDIS is rolled out, ADEs are still defined under section 7 of the Disability Services Act so we don't need to change it until it changes in the Act.

PN1314

MS LANGFORD: We have had some concern though from some members who have fully transitioned now into the NDIS.

PN1315

MS SVENDSEN: Because they think they're not covered any more.

PN1316

MS LANGFORD: They do think they're not covered.

PN1317

MS SVENDSEN: Except they are.

PN1318

MS LANGFORD: Now, the only reason they are slightly covered is because of the standards. Technically they've still got a contract with the Commonwealth whilst they're actually covered by the standards, but once we do go into the quality and safety framework, they're no longer going to be covered by the National Standards any more, so technically they're not going to be covered - - -

PN1319

MS SVENDSEN: This is more about the (indistinct).

PN1320

MS LANGFORD: I know, but it still - - -

PN1321

MS SVENDSEN: I mean, we still haven't got that yet, so - - -

PN1322

MS LANGFORD: No.

PN1323

MS SVENDSEN: We haven't got the detail in relation to that, so again I think we're still jumping ahead of the ball game. I understand that they're concerned. I understand that people are concerned going forward. I'm not suggesting we aren't going to have to make a change, but if we try and pre‑empt the change we need to make, I think there will be other problems and it won't just be me and UV.

PN1324

The reality is that a change could be seen as an attempt to broaden out the coverage of this award and that will create problems, and it creates much more global problems. Coverage issues are contentious matters.

PN1325

MS LANGFORD: And that is going to be, I think, going forward - is going to remain being contentious because more as the NDIS rolls out, there may be people or organisations who decide to set up as supported employment enterprises who may want to seek coverage by the award, as well. I suppose that's why this is such as an important point, as well.

PN1326

MS SVENDSEN: Well, it would be a very important point because if they can just set up as a supported employment service, there will be significant problems.

PN1327

MS LANGFORD: Absolutely, but there is the possibility - because I know there are organisations now, businesses, that are looking at that supported employment enterprise model.

PN1328

MR CHRISTODOULOU: Are they private for profit?

PN1329

MS LANGFORD: No, they are - - -

PN1330

MS SVENDSEN: (Indistinct)

PN1331

MR CHRISTODOULOU: Well, don't you worry, you will have them in the space.

PN1332

MS LANGFORD: No, there are some not for profit. There is one that I'm aware of that is actually funded by a philanthropic trust in the first place and, in the second place, it's actually driven through their own capital that they're deriving through business. There are businesses that are looking to be social supported employment enterprises.

PN1333

MR CHRISTODOULOU: Can I just make a comment? If this is an issue that some of NDS's members have a concern about that are currently in the NDIS space, is this not some advice we can get off the Commonwealth about whether the Commonwealth regards them as still being deemed to be under the Act?

PN1334

MS FREELAND: Whilst they've still got a funding arrangement with the - - -

PN1335

MS SVENDSEN: Yes.

PN1336

MR CHRISTODOULOU: Because the concern will be that as soon as the NDIS takes over that funding arrangement and starts to fund either individual clients or whatever and they no longer have an agreement with the department, then they may not technically be covered by the award.

PN1337

MR KEMP: Although strictly this is something where in all of this space the Commonwealth hasn't provided advice. We have in the past funded ADEs to seek legal advice themselves. The Commonwealth, while we can get legal advice as has happened in these hearings, we're not able to share detail because it's Commonwealth advice and so I think it's something that ADEs would probably want to seek their own advice on, legal advice, about application of the Act.

PN1338

What you're asking is whether or not this award will apply to you, vis-a-vis the Disability Services Act, and that's not something that - - -

PN1339

MR CHRISTODOULOU: Well, let me ask it another way. Forget about the legal advice. Is it the intention of the Commonwealth that ADEs be able to operate under an NDIS environment?

PN1340

MR KEMP: Yes, well, that is what I had said previously.

PN1341

MR CHRISTODOULOU: Yes, in which case - - -

PN1342

MR KEMP: Our intent is that you could continue to use this Act.

PN1343

MR CHRISTODOULOU: That's right.

PN1344

MR KEMP: I think Leigh said they didn't have an objection to - - -

PN1345

MR CHRISTODOULOU: In which case it's in the Commonwealth's interests then to make sure that people don't fall outside of it.

PN1346

MS WILSON: Isn't it in the ADEs interests to write to the department that is actually doing it? I mean, James - - -

PN1347

MR CHRISTODOULOU: Yes, I agree.

PN1348

MS WILSON: To ask for the legislation to be amended. That would be the best thing to do really, because it's not something that can be resolved here until that is amended. I mean, Leigh has made it clear that they're not - you know, there is no agreement basically until such time and it's not a huge amendment, anyway.

PN1349

THE DEPUTY PRESIDENT: Rob, did you have something you wanted to add?

PN1350

MR KIRKHAM: I just share the view that - what is covered now. There are changes, so we should seek guidance from the Commonwealth.

PN1351

THE DEPUTY PRESIDENT: I suppose you wouldn't expect to get that guidance within this month, would you?

PN1352

MS WILSON: No.

PN1353

THE DEPUTY PRESIDENT: So it may be something that is left hanging in terms of the - - -

PN1354

MS WILSON: Yes. It's actually more than guidance. I think that you should seek to have the legislation amended so it's very clear that it covers - - -

PN1355

MR KEMP: (Indistinct)

PN1356

MS WILSON: Yes. Guidance is not going to give you anything really.

PN1357

THE DEPUTY PRESIDENT: Of course just because we're dealing here with the modern award review, it doesn't mean that at a future point in time when there is perhaps even a new name of the Act - the Disability Services Act, you know, 2017, for example - you would seek to vary the award to reflect that and you could do that outside of the modern award review. Okay.

PN1358

The next issue that was on your list, Kerrie, was really a response, so therefore in order to discuss it we would probably need the unions - and it's a United Voice claim, so Leigh may not be wanting to discuss it at the moment, but you're really saying, I think, that you're not happy to remove the threshold of 450 per month in relation to super; but is it something that we would need to discuss on the next occasion when UV is here and they can put forward why it is that they want to remove that 450‑dollar threshold?

PN1359

MS LANGFORD: Yes, please.

PN1360

THE DEPUTY PRESIDENT: Okay.

PN1361

MS WILSON: Sorry, in regard to the superannuation, can I just make a point that we are having a number of clients coming to us where the superannuation - you know, there is little point in paying superannuation if they're going to lose it all in admin costs; that it's actually costing them to do it. That is what is happening, so - I don't know, it just - - -

PN1362

MR CHRISTODOULOU: Can I just say I'm in a joint ticket with Kairsty on this. It's a massive issue where the lower count balances are being eaten up by administration and actual insurance people.

PN1363

MS WILSON: Yes.

PN1364

MR CHRISTODOULOU: It's not an issue necessarily for this group, but we are trying to start a campaign to get some changes in the superannuation industry where they can actually provide some different - - -

PN1365

THE DEPUTY PRESIDENT: That's what my super was meant to solve.

PN1366

MR CHRISTODOULOU: Yes. Look, it does get back to the fact that there are very low contributions going in and so, to give an example, we had one person that - our contribution is, I think, $9 or $9.50 as the minimum, but throughout the whole lifetime more than 60 per cent of the contribution has been taken out by administrative and insurance fees, so their balance is just absolutely tiny. So the carers question - they're not questioning the value of superannuation, they're questioning the amount of the administration fee and the default insurance, et cetera.

PN1367

MS WILSON: I mean, I've got one. It's a negative balance and, you know, their fund is asking for the money to pay for the admin costs.

PN1368

MR CHRISTODOULOU: Really?

PN1369

MS WILSON: That's just outrageous.

PN1370

MR CHRISTODOULOU: They can't do that.

PN1371

MS WILSON: Well, you know, they're saying they are.

PN1372

THE DEPUTY PRESIDENT: They can't be an industry super fund.

PN1373

MR CHRISTODOULOU: They can't be.

PN1374

MS WILSON: No.

PN1375

THE DEPUTY PRESIDENT: BT, or something like that.

PN1376

MS WILSON: The thing is a lot of them wouldn't understand about the industry.

PN1377

MR CHRISTODOULOU: That's right.

PN1378

MS WILSON: You know, your family - you know, carers have just - "All right, we'll do it through that", so they have just lost out big time.

PN1379

MS WALSH: Could I raise another issue in relation to superannuation payments that are deducted from eligible employees within an ADE, where I dealt with a parent carer who received a bill for $3000 and that was because the particular employee did not lodge a tax return, so they then required them to go back and lodge tax returns for 10 years. The balance in there was minimal, but they required that they lodge a tax return because they had exceeded the taxable income in that particular year.

PN1380

It took me two days and hours and hours and hours to resolve that. We did resolve it, but the issue is the superannuation - how it is handled and the amounts are a problem.

PN1381

THE DEPUTY PRESIDENT: So we will wait until United Voice comes to hear their particular claim, but it may be that you've got a much larger, more significant problem to deal with that needs to be dealt with potentially outside of the industrial relations environment and in the super policy environment.

PN1382

MS LANGFORD: Correct. Your Honour, there was actually one other issue we had brought up, as well.

PN1383

THE DEPUTY PRESIDENT: I'm sorry, have I missed something?

PN1384

MS LANGFORD: Yes, it was around the definition of an employee in the SES Award.

PN1385

THE DEPUTY PRESIDENT: Right. I apologise. Okay, let's go back to that then.

PN1386

MS LANGFORD: So basically there is a different definition to "employer" and "employee" within the current award.

PN1387

THE DEPUTY PRESIDENT: Yes.

PN1388

MS LANGFORD: What we're actually suggesting is that the award actually reflects the terminology as defined in section 7 of the DSA for an employee. The reason we're bringing this about is that with the changes to the Welfare Reform and a number of different things that are happening in that space, some people who previously would have been on the DSP now are actually having to go back and contest that, but also, too, there are now some people who are employed in Australian Disability Enterprises who are no longer on the DSP. They actually are on Newstart. That is basically due to Welfare Reform.

PN1389

SPEAKER: It's (indistinct).

PN1390

MS LANGFORD: Yes, absolutely. So we would like the modern award to actually reflect the wording that is currently in section 7 of the Disability Services Act. Do you want me to give you that wording?

PN1391

THE DEPUTY PRESIDENT: I think that's a good idea.

PN1392

MS LANGFORD: Okay. It basically states:

PN1393

An employee with a disability means a national system employee -

PN1394

and then goes:

PN1395

(a) for whom competitive employment at or above the relevant award wage is unlikely; and (b) who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

PN1396

THE DEPUTY PRESIDENT: So talk about that while I go back and try and fix this up.

PN1397

MR CHRISTODOULOU: Just on that, so I can understand that, too, Kerrie, you have to have both of those criteria?

PN1398

MS LANGFORD: Yes.

PN1399

MR CHRISTODOULOU: Okay.

PN1400

MS LANGFORD: That's what is in the Disability Services Act at this point of time, section 7.

PN1401

MR CHRISTODOULOU: Yes. That would actually also theoretically resolve the clarity around a young person.

PN1402

MS LANGFORD: Correct. That's exactly right. It does pick up on that, as well.

PN1403

THE DEPUTY PRESIDENT: Is there a view about this amongst the advocates and the unions?

PN1404

MS SVENDSEN: We're going to talk about it.

PN1405

THE DEPUTY PRESIDENT: Okay. I'll try to help you do that by typing it.

PN1406

MS LANGFORD: So in the exposure draft it's just in the definition section of what an employee is; an employee with a disability.

PN1407

THE DEPUTY PRESIDENT: Where is that?

PN1408

MS LANGFORD: It's in number 2, Definitions, on page 4 of the exposure draft.

PN1409

THE DEPUTY PRESIDENT: So it is:

PN1410

"Employee" means a national system employee within the meaning of the Act and includes an employee with a disability.

PN1411

So that is rather opaque, isn't it, in the sense that one would then have to go to the Act. The Act they're referring to is the Fair Work Act or the - - -

PN1412

MS LANGFORD: No, Disability Services Act.

PN1413

THE DEPUTY PRESIDENT: I think it is.

PN1414

SPEAKER: It is the Fair Work Act.

PN1415

MS LANGFORD: Okay, yes. Sorry, yes.

PN1416

THE DEPUTY PRESIDENT: I see, it's the national system employee within the meaning of the Act.

PN1417

MS LANGFORD: That's exactly right.

PN1418

THE DEPUTY PRESIDENT: And includes an employee with a disability, so - - -

PN1419

SPEAKER: And then an employee with a disability - - -

PN1420

THE DEPUTY PRESIDENT: It's really an employee - - -

PN1421

MS LANGFORD: That's the next - yes, correct. It keeps going down further.

PN1422

THE DEPUTY PRESIDENT: Then we go down to what that is. Okay, yes. So you're seeking replace both of those things with these other words that I've just typed, yes?

PN1423

MS LANGFORD: Correct.

PN1424

THE DEPUTY PRESIDENT: Looking at those words as you see them there on the screen, Leigh and Kairsty, are you able to give a gut feeling - - -

PN1425

MS WILSON: No.

PN1426

MS SVENDSEN: No, I need to keep looking at it and have a look at this, too, so I don't quite just jump on it. I need to look at the legislative framework.

PN1427

THE DEPUTY PRESIDENT: James, do you anticipate any issues from a Commonwealth point of view with the definition being entirely encompassed in the award as opposed to having a reference back to '94 and '95 of the Social Security Act?

PN1428

MR KEMP: I don't know what the implications of that are. I suppose the issue is if there were changes to the Social Security Act, then there would be inconsistencies between the Social Security Act and the award, whereas if it referenced back to the Social Security Act, then you could be sure that there is consistency. You're trying to, you know, change that so that there is a - - -

PN1429

MS LANGFORD: We're just trying to make sure that going forward as, you know, Welfare Reform carries on, that people who, because of changes to eligibility to the Disability Support Pension, may not be able to access it because it is getting tighter and harder and harder to get onto disability support pension for those who need it - that if they choose to work in supported employment going forward, that they actually can and that it's recognised under the award, as well. Basically we're just trying to make sure that everybody is actually covered.

PN1430

MR KEMP: I suppose the one question - and it is really just a question - if it is assessed under the Social Security Act that someone has capacity to work, then I suppose you're then arguing that they should be paid at a lower rate. I mean, under other awards there is capacity to pay SWS, but you're wanting to pay people who have been assessed as being casual and working less than that - - -

PN1431

MS LANGFORD: Part of the dilemma is at this point of time in supported employment enterprises or ADEs, there are a number of people who have been and were on DSP, but through the DSP review are no longer on DSP, who are actually employees of supported employment enterprises.

PN1432

MR KEMP: Yes, but that would be because they are assessed as having capacity - - -

PN1433

MS LANGFORD: Yes, partial capacity, but you can still be on Newstart Allowance and actually be eligible for employment in a supported employment enterprise.

PN1434

MS MOONEY: We just used to have to go through Centrelink to get approval.

PN1435

MS LANGFORD: Correct, yes. Now that's not the case, so in terms of meeting your participation requirements, supported employment actually meets that requirement so you can be somebody who is on a partial DSP with a partial capacity to work and you can work in supported employment enterprise or you can actually have a partial capacity to work and be on Newstart Allowance and also be employed by an Australian disability enterprise. We just want to make sure that those people continue to actually be covered by the award and actually have access to employment in a supported employment enterprise.

PN1436

MS WILSON: I think we've got a problem.

PN1437

MR KEMP: Yes. I mean, if there is agreement and it's something we would need to - it's outside my area. Welfare Reform is not my area.

PN1438

THE DEPUTY PRESIDENT: Yes.

PN1439

MR KEMP: Certainly we could propose changes past the Welfare Reform area - - -

PN1440

MS LANGFORD: It's an unintended consequence of Welfare Reform and it's one of the things that we picked up along the way and have gone to the Minister about, but it's directly related - - -

PN1441

MR KEMP: I'm not sure whether it is unintended, that's all. Well, I don't know. It's not my area.

PN1442

MR CHRISTODOULOU: Is your proposal, in a sense, restricted to those people that are existing within the industry - - -

PN1443

MS LANGFORD: Existing employees.

PN1444

MR CHRISTODOULOU: - - - as distinct from, well, anyone new that would want to come in, because they won't be able to come in.

PN1445

MS LANGFORD: No, well, that - - -

PN1446

MR CHRISTODOULOU: That's right.

PN1447

MS LANGFORD: That's right.

PN1448

MR CHRISTODOULOU: So, in other words, this proposal is only with respect to people that are currently in the system.

PN1449

MS LANGFORD: Currently, absolutely. Yes, that's exactly right.

PN1450

MR CHRISTODOULOU: So it really is almost like a - what do you call it?

PN1451

MS LANGFORD: A grandfather - - -

PN1452

MR CHRISTODOULOU: A grandfathering provision.

PN1453

MS LANGFORD: Yes.

PN1454

MR CHRISTODOULOU: Otherwise those people might find themselves out of work, is what you're saying.

PN1455

MS LANGFORD: Correct. That's correct.

PN1456

MS WILSON: Find themselves at home.

PN1457

MS LANGFORD: Absolutely.

PN1458

MS WILSON: Or out on the streets.

PN1459

MS LANGFORD: Yes.

PN1460

MR ROGERS: Kerrie, what about people that are deemed ineligible who - from NDIS? There are lot of people being asked now to, you know, verify their disability.

PN1461

MS LANGFORD: Yes, correct.

PN1462

MR ROGERS: If they drop off that - - -

PN1463

MS LANGFORD: They're going to be in the same situation.

PN1464

MR ROGERS: - - - they're going to miss out.

PN1465

MS LANGFORD: Absolutely.

PN1466

MR ROGERS: That's happening right now.

PN1467

MS LANGFORD: Yes, that is happening right now.

PN1468

MR CHRISTODOULOU: In the future, unless you're on the Disability Support Pension and/or NDIS, you won't come into our industry any more.

PN1469

MR ROGERS: No. I mean, we've got those ones there now that - - -

PN1470

MR CHRISTODOULOU: If they're not assessed in that way in the future, because they don't come in now - - -

PN1471

MS LANGFORD: If they don't meet the reasonable and necessary - - -

PN1472

MR CHRISTODOULOU: Yes.

PN1473

MS LANGFORD: That's correct, yes. That's right.

PN1474

THE DEPUTY PRESIDENT: That's a big issue.

PN1475

MS LANGFORD: It is a big issue.

PN1476

THE DEPUTY PRESIDENT: Is it, like the other one - - -

PN1477

MS SVENDSEN: If it's a big issue, how do I determine it's not the Newstart kid down the road?

PN1478

MR CHRISTODOULOU: That's right.

PN1479

MS LANGFORD: I agree.

PN1480

MS SVENDSEN: (Indistinct)

PN1481

MS LANGFORD: So then is the definition around NDIS eligibility and is that the terminology we use, the NDSI eligibility - the coverage.

PN1482

MS SVENDSEN: No, I don't think that does it either, but, I mean, if I have cerebral palsy, there's nothing that stops me working as a lawyer.

PN1483

MS LANGFORD: Correct.

PN1484

MS SVENDSEN: I don't think you can run a supported wage system on the fact that I'm doing so. I think that clearly that person would be eligible for some supports under NDIS (indistinct).

PN1485

MS LANGFORD: That's exactly right. They need to meet the reasonable and - - -

PN1486

MS SVENDSEN: No, that's my point. They wouldn't be, but - - -

PN1487

MS LANGFORD: But if they met the reasonable and necessary requirements for supported employment and they were deemed under those cluster items - - -

PN1488

MS SVENDSEN: Also, I mean, why was - I mean, I was thinking out loud when I said that because I know we're not going to consider that, but if somebody is on Newstart because they're deemed to have capacity to work, generally speaking - and I'm not over the top of the details of the reform either, so I'm not trying to make a comment about it, but if that's what somebody is deemed to fit - the criteria that somebody is deemed to fit now - why would they require significant support to be in employment and not get a DSP?

PN1489

MS LANGFORD: Sorry, in terms of Newstart, let's just go - even around having the capacity to work, for somebody to actually receive DSP now, a new person going on, actually has to undertake a program of support where they actually have to participate in some program, either being DES, training or something like that, before they're actually granted DSP. Now, there can be some people with significant disability who actually aren't necessarily granted DSP but who are in that program of support who actually may want to work in supported employment. That's why. It has got to cover those individuals.

PN1490

MS SVENDSEN: But they wouldn't be on Newstart.

PN1491

MS LANGFORD: Yes, they are. They're on Newstart until such time they're actually deemed to be eligible for DSP. They have to participate in a program of support to actually - - -

PN1492

MS SVENDSEN: They have got to fail.

PN1493

MS LANGFORD: That's exactly right. They've got to fail in terms of that program of support and then they can actually be eligible - - -

PN1494

MS SVENDSEN: Let's do something about the fact that that is completely frigging illogical for somebody who is bedbound.

PN1495

MS LANGFORD: Correct. Absolutely.

PN1496

MS SVENDSEN: Or whatever else it happens to be.

PN1497

MS LANGFORD: Yes.

PN1498

MS SVENDSEN: And do something about that instead of trying to make the award fit a situation that it's never going to cover.

PN1499

MS LANGFORD: Yes.

PN1500

MS SVENDSEN: And a look at the issue that you're raising around people in that assessment period of time. I'm not sure whether the assessment period of time thereby covers them in this award, anyway. I mean, it would be arguable whether they're kind of going to be working an ADE necessarily during the time they're looking for - they're being assessed under Newstart before they get their DSP, but then they would be under a DSP as ultimately the outcome. That's what you're really saying about some of those people in terms of assessment. I don't want to actually fix the problem of the assessment period either.

PN1501

MS LANGFORD: The dilemma is - so it's 18 months of continual participation in a program of support during that period. It's continuous, as in it has to be 18 months, so that if someone has a suspension or something like that in an open employment, that actually stops the clock. So it's 18 months of continued participation - - -

PN1502

MS SVENDSEN: Let's deal with that separately, because I don't think you can deal with it under this award. I mean, that's actually not something that you can fix under this award.

PN1503

MS LANGFORD: But part of the dilemma is that we are going to - potentially if we don't have a definition that sits in this award that allows people who aren't on DSP who are in that phase, you're actually denying access to supported employment, to that opportunity, by actually keeping that definition.

PN1504

MS SVENDSEN: No, I'm actually denying access to these wage levels.

PN1505

MR CHRISTODOULOU: I think we need to just traverse those words. Tell me if I'm wrong, Kerrie. What Kerrie's purporting to do is simply protect those people that have been working in supported employment most of their working life.

PN1506

MS LANGFORD: No, there are two lots, Chris. There are new entrants - - -

PN1507

MS SVENDSEN: Yes, new entrants.

PN1508

MS LANGFORD: - - - as well as existing entrants, so there are two cohorts.

PN1509

MR CHRISTODOULOU: Okay, but with respect to the existing people, the implications of not making a change or grandfathering existing people is they will lose their jobs.

PN1510

MS LANGFORD: Absolutely. That's one issue.

PN1511

MR CHRISTODOULOU: Okay. Is that at least one consideration, Leigh, that you're prepared to look at for existing people, let alone your opposition for future people?

PN1512

MS SVENDSEN: Look, it's not an opposition per se. It's a serious concern that we're looking at making changes to the coverage of this award on the basis that there has been a welfare reform that is screwing up a system that worked well previously. I mean, even think about the political debate if we actually didn't have workers compensation schemes and traffic accident schemes that kicked people off disability - off their payments after a period of time, then we wouldn't have such a burgeoning increase in the disability support pension, but I worry about something as, you know, linked as that. Sorry.

PN1513

MS LANGFORD: There is actually a decrease in the number of people on DSP and it's quite significant, yes.

PN1514

MS SVENDSEN: I know now there is, yes.

PN1515

MS LANGFORD: Yes, there is now.

PN1516

MS SVENDSEN: No, but there were - the majority of the increase, the exponential growth in DSP, came about as workers compensation schemes started getting capped.

PN1517

MS LANGFORD: Correct.

PN1518

MS SVENDSEN: And people then got to the end of their workers compensations scheme or traffic accident scheme payments.

PN1519

MS LANGFORD: Yes.

PN1520

MS SVENDSEN: They then went onto Commonwealth DSP, so we just ignored that when we went nuts about how DSP is going. You know, we've got to stop all these people rorting the system because they're now DSPs. I hear what you're saying that there is a problem. I'm not sure that we can address the problem by writing something in this award that enables people on Newstart to be covered by this award and that's the problem, because you have to exclude a whole lot of people when you're trying to include somebody who, because of the Welfare Reform, no longer is receiving a DPS or doesn't get it the way it used to occur.

PN1521

Yes, I certainly can't think of that off the top of my head. I hear what you're saying about it, but I just am concerned about the implications in relation to that because this is and will continue to be a confined space award and it can't be anything other than that.

PN1522

MS LANGFORD: But the flipside is we could be denying a number of people access to employment.

PN1523

MS SVENDSEN: That's what I said.

PN1524

MS LANGFORD: I think that's - yes.

PN1525

MS SVENDSEN: I hear what you're saying, but I'm certainly not going to agree to something that allows somebody on a Newstart to be covered by it. Like, that would be a ludicrous thing for us to accede to. In fact I don't think the Commission would bear it, anyway, but it would be a ludicrous thing for the unions to say, "Oh, yeah, there's a great idea."

PN1526

MS LANGFORD: In terms of if we looked at the wording though - - -

PN1527

MS SVENDSEN: I suppose it's better than half, but not much.

PN1528

MS LANGFORD: If we looked at the wording though and started to look at the eligibility around the NDIS and particularly around if you're eligible - - -

PN1529

MS SVENDSEN: Potentially that's something that, you know, you might be able to play with, something along those lines, but again it's still - it's not as broad at that either, so we need to think about it.

PN1530

MS LANGFORD: Could we have a play with some words together?

PN1531

MS SVENDSEN: Yes, play with some words.

PN1532

MS LANGFORD: Yes, absolutely.

PN1533

MS SVENDSEN: Yes, I'm absolutely happy to have a play with words and stuff, and I hear what you're saying about it. I just don't know - or I can't quite see my way through it at the moment.

PN1534

MR CHRISTODOULOU: Can I just say something, talking from my point of view. I'm sure this would be the case for NDS. The intention certainly isn't - and I would be opposed to this - opening up this award for any Newstart person.

PN1535

MS SVENDSEN: No, I understand that.

PN1536

MS LANGFORD: Absolutely.

PN1537

MS SVENDSEN: I'm not suggesting it is, but I'm not comfortable using terminology that implies it either or even states it.

PN1538

MS LANGFORD: Yes. Look, I agree with what you - - -

PN1539

MS SVENDSEN: I understand what you're saying.

PN1540

MS LANGFORD: Yes.

PN1541

MS SVENDSEN: But that's sort of what I'm - yes.

PN1542

THE DEPUTY PRESIDENT: All right. You've got yourself another job of work, but this time your playmate is Kerrie, not Chris.

PN1543

MR CHRISTODOULOU: We might play together.

PN1544

THE DEPUTY PRESIDENT: Yes.

PN1545

MS LANGFORD: We have had a bit of a play with some words though.

PN1546

THE DEPUTY PRESIDENT: Okay. All right. That's very good to ventilate that. Thank you, Kerrie. I think that does exhaust your list, so we're going to go back and have a look where that leads us.

PN1547

MR KEMP: Sorry, your Honour.

PN1548

THE DEPUTY PRESIDENT: Yes, James.

PN1549

MR KEMP: Just in relation to that, I think before the Commonwealth, you know, we explore whether or not we would accept that. We would want to have agreement between the parties before - just so it's clear that, you know, there is no expectation that we're going to come back with any proposed amendments in that - - -

PN1550

THE DEPUTY PRESIDENT: Yes, so it doesn't - I think, yes, so it's understood this is really a work in progress between the parties and then where the Commonwealth sits would be a response to that.

PN1551

MS LANGFORD: Absolutely, yes.

PN1552

MS WILSON: Through your Honour just to Leigh, so would the union be more receptive to a grandfathering clause to protect the existing employees - there are two issues there. Would there be more capacity for the union to be favourably, I guess - towards that?

PN1553

MS SVENDSEN: Let's just point out that there might in fact be a legislative problem with a grandfathering clause.

PN1554

MS WALSH: Okay.

PN1555

MS SVENDSEN: Given that there appears to be a - that has been suggested or something in the vicinity of that has been suggested in the penalty rates case and I'm not sure - there have been discussions about whether grandfathering that for those who are currently employed or some kind of - - -

PN1556

THE DEPUTY PRESIDENT: A more sexist term is "preserving".

PN1557

MS WALSH: Preserving, yes.

PN1558

MS SVENDSEN: Yes, or preserving. I'm happy to use that term, but, be that as it may, the current contention is that that's not going to be possible. I can't guarantee that that is legislatively available to us under the Fair Work Act.

PN1559

MS CARTER: So it could be that families who have someone working in an ADE could end up, through unintended consequences, being no longer employed in an ADE.

PN1560

MR CHRISTODOULOU: Yes.

PN1561

MS CARTER: And that is already happening.

PN1562

MR CHRISTODOULOU: It is.

PN1563

MS SVENDSEN: I know that - as I said, this is actually a problem in terms of the penalty rates case, because the issue of either take‑home orders or preserving their current penalty rates was raised and it has been - it has not been rejected, but what his Honour Ross J has asked for is how under the Act anybody thinks you can do it, which would be another way of saying, "I don't think we can do it, guys. Go away. It's not possible."

PN1564

I would think that it's unlikely to be available to us, so you need to find something that isn't about preserving something for those who are currently employed. You need to find something that actually deals with the issue.

PN1565

MS LANGFORD: I think we looked around definitions around NDIS and particular cluster line items that could be our way through this, because that is also - - -

PN1566

MS SVENDSEN: Let's not go for anything too specific, because then the line items will - - -

PN1567

MS LANGFORD: Well, maybe, yes.

PN1568

THE DEPUTY PRESIDENT: Anyway, I think you two are going to put your heads together on this - - -

PN1569

MS LANGFORD: Yes, we will.

PN1570

THE DEPUTY PRESIDENT: - - - and come back with something, so that then took us back down to the super and I think we agreed that, first of all, we needed to wait until United Voice was here and, secondly, this is a big super policy question so querying whether this award could really deal with it. Then that took us to Chris as the next speaker and fundamentally I think the issues that you wanted to raise, we're going to be dealing with when we deal with the big wages tool questions.

PN1571

MR CHRISTODOULOU: Yes.

PN1572

THE DEPUTY PRESIDENT: Then that took is to Leigh. Maybe before we conclude the day, we might be able to deal with the low hanging fruit of the ceremonial leave clause.

PN1573

MS SVENDSEN: It might be easier if I send it instead of telling people, but - - -

PN1574

THE DEPUTY PRESIDENT: Yes, but I wouldn't mind just getting a bit of a view as to whether ADEs consider this likely to present any difficulty. It seems fairly uncontroversial, but - - -

PN1575

MS SVENDSEN: I had it in other awards that I can probably - - -

PN1576

THE DEPUTY PRESIDENT: Yes. Torres Strait Islander spelt S‑t‑r‑a‑i‑t should be included. Have you got a sense of that one? Anyone going, "No, no?"

PN1577

MS LANGFORD: Not at this point.

PN1578

MR CHRISTODOULOU: I'm not worried about it at all.

PN1579

THE DEPUTY PRESIDENT: So that's likely to be agreed.

PN1580

MS SVENDSEN: I will put down some wording. I just haven't got it into a draft determination for this award, but I do have it in others.

PN1581

SPEAKER: Would it be similar to what is in the exposure draft for SCHADS?

PN1582

MS SVENDSEN: Yes.

PN1583

THE DEPUTY PRESIDENT: Are there any ADEs in areas of high population density of people who, you know, have experience with the ADEs - - -

PN1584

MR CHRISTODOULOU: Well, we have got a couple of supported employees that are of Aboriginal background, but I wouldn't have a problem in - - -

PN1585

THE DEPUTY PRESIDENT: Experience with them.

PN1586

MR CHRISTODOULOU: No. I mean, if they wanted time off now for that type of thing, we would not say no, anyway, so I don't think it's - - -

PN1587

MS SVENDSEN: Which is why it's actually not an issue.

PN1588

SPEAKER: I don't think it - yes, I think it's a non‑issue.

PN1589

MS WALSH: We would have some (indistinct) but I don't think that it would be any different with the - it tends to cover both Aboriginal and Torres Strait Islanders, so I just think it's one of those things that we wouldn't see as a problem.

PN1590

THE DEPUTY PRESIDENT: People would disabilities would love to be involved in. Okay, so you're likely to reach agreement on this one.

PN1591

MS SVENDSEN: I think we have got the (indistinct) drafting in some awards with some matters that have just been agreed and dropped in.

PN1592

THE DEPUTY PRESIDENT: So wording for the SCHADS Award is likely to cover it. Is that what you're saying?

PN1593

MS SVENDSEN: I am.

PN1594

THE DEPUTY PRESIDENT: All right. Well, let's not labour the point. It looks like it's going to be agreed. I think we've got, kind of, quite well through our list. Just bear with me and I'll tell you. Kairsty, all of your issues have been dealt with or will be dealt with as we come up to the biggies.

PN1595

MS WILSON: (Indistinct)

PN1596

THE DEPUTY PRESIDENT: I don't mean you personally. I mean your constituency, your organisation and its members and other stakeholders. Then, James, your comments were just specifically on what we have just talked about. Mary and Mary Lou, very much again about the wages, but there was something interesting here that we would need to pick up, I think. The award has an assumption about parent guardian support for decision‑making, so where do you see that in the award? Can you take the group to where that just is?

PN1597

MS WALSH: Just a moment, yes. Just a moment.

PN1598

THE DEPUTY PRESIDENT: That's all right.

PN1599

MS WALSH: I'll have to go to our submission, which I bet I can't find. I guess there are two issues. One is that the label of people with a disability doesn't really - I mean, I know there has been reference to someone with CP who can actually end up being a lawyer and that's great, but the majority of people in our ADEs have an intellectual disability. Depending on where they're graded or whatever levels they sit on, some have the capacity to make some decisions but there are many with what we would call no capacity to make legal decisions.

PN1600

THE DEPUTY PRESIDENT: And this DMI that you have been working with, presumably reflects that.

PN1601

MS WALSH: Yes, but the thing is that there is an assumption within the award where it says that, you know, parents and carers can be - or guardians, parents and carers - there are actually two sections. One is, if I can refer to our submission, award flexibility for individual arrangements, which is 6.2 of part 6. The terms "coercion" or "duress", we have had occasions where they have actually been used against family carers to the extent that family carers can have a conflict of interest and this is really all about the workers, not the families or carers.

PN1602

I would like to just spend a little bit more time on that, if I could, your Honour, just to sharpen the points around that and bring those back on the 21st. We have a meeting in the next couple of days, so I'd like to sharpen that - - -

PN1603

MS SVENDSEN: Can I actually just butt in - sorry, Mary.

PN1604

MS WALSH: Sure.

PN1605

MS SVENDSEN: That facilitative clause is one that - the award flexibility clause is one that applies to all awards as a consequence of the Act, so I don't know that you will be able to change it.

PN1606

MS WALSH: So given the differences between open employment and commercial enterprises - - -

PN1607

MS SVENDSEN: I understand your concern. I absolutely understand your concern, but those clause are ones that - I'm just saying to you that those clause are ones that the Commission regards as machinery clauses. They're required under the Act to be included in an award.

PN1608

MS WALSH: Yes.

PN1609

MS SVENDSEN: The regulations provided that that is the clause. Not a version of it - - -

PN1610

MS WALSH: No.

PN1611

MS SVENDSEN: - - - but that is the clause.

PN1612

MS WALSH: So when the award actually says that someone has a disability and they're representative can act on their behalf, and makes the assumption that they actually have a representative - - -

PN1613

MS SVENDSEN: It's them or their representative. Yes, look, I understand your concern about how this applies to employees in the context of this award who might be covered by what is an award flexibility clause.

PN1614

MS WALSH: Yes.

PN1615

MS SVENDSEN: I'm just telling you from the point of view of the Act it would be - there are some provisions in here that go in as standard clauses.

PN1616

MS WALSH: Yes.

PN1617

MS SVENDSEN: It's really more than difficult to change them. It doesn't matter whether we consent or not.

PN1618

MR CHRISTODOULOU: So I'm clear about what you putting forward, Mary - - -

PN1619

MS WALSH: Yes.

PN1620

MR CHRISTODOULOU: Is what you're putting forward is you want some role of the carer and guardian to be acknowledged in the award in terms of, I guess, a range of different issues associated with the award? Is that what you - - -

PN1621

MS WALSH: Well, yes. There are many issues where some of our family workers in fact do not have the legal capacity (1) to sign anything or to make decisions or in fact to understand when there is a workplace change or their hours may be changed or their job may be changed. I don't think the word "advocate" is even mentioned in the award.

PN1622

MS SVENDSEN: No, deliberately not.

PN1623

MS WALSH: It's deliberately not.

PN1624

MS SVENDSEN: It's a decision of the - because "advocate" in industrial terms means somebody like a union.

PN1625

MS WALSH: Yes.

PN1626

MS SVENDSEN: So that's deliberately not included in there. It's not one that I support.

PN1627

MS WALSH: No.

PN1628

MS SVENDSEN: But I have it back in there.

PN1629

MS WALSH: Yes.

PN1630

MS SVENDSEN: But, yes, that's why.

PN1631

MS WALSH: Is there anything that we could do that would, I guess, not be contra to the Act - but there is this assumption that there are parents - there are many of these people who have no parents. They have siblings, they have no guardians. Guardianship is so hard to obtain, believe me. I've been there, done it and not done it.

PN1632

MS SVENDSEN: Yes, so have I.

PN1633

MS WALSH: So the issue is there is the assumption that there are parents, carers, guardians - - -

PN1634

MS SVENDSEN: Yes, I understand that.

PN1635

MS WALSH: Sometimes there are occasions when the employer is the best advocate they could have, but there is a conflict of interest there so therefore that employer is not able to speak on their behalf. I mean, I'm happy to listen to anyone who can give us guidance as to how we might be able to overcome it.

PN1636

MS SVENDSEN: I can say this about this: one is that the award flexibility provisions, I'll go (indistinct) if they're used in relation to the supported employees themselves.

PN1637

MS WALSH: Of course. I understand that.

PN1638

MS SVENDSEN: ADEs can say it will be the employees that are not supported employees, so it will be used for those people if it's used for anyone, but the award flexibility clause is - yes, it does, it assumes two things. Well, it assumes, that you have the capacity to negotiate those terms and conditions with your employer, something that we would dispute most people have the capacity to do, but that's the underlying assumption.

PN1639

While you are perfectly allowed to have somebody represent you or advocate for you on your behalf that is envisaged by the clause, there is no as of right to have representation and there's no requirement for an employer to advise a union or somebody else of that except for those who are under 18. As I said, it's a standard clause that relates to the modern awards rather than it being a clause that relates to this award alone. I would be very surprised if it's actually used for supported employees - go, Chris. Sorry.

PN1640

MR CHRISTODOULOU: This is not about award flexibility per se, but I know that in our Greenacres EBA we actually do - like, if we're introducing a major change, not only are we obliged to consult with the employees, the unions, but we have deliberately put in there carers and guardians about any major change. In the dispute settling procedure, we actually make it really clear that if someone wants to dispute their wage assessment, they can go to a union, an advocate or their carer or guardian.

PN1641

I actually think there is a role and if there is ever an argument for unions, advocates or carers to be involved in matters relating - it's in this award because of the nature of the employee demographic we're dealing with, which are employees that can be quite vulnerable if not treated fairly; so I think there is a discussion that should be had about how we can actually embrace a carer/guardian role as an advocate, as well as other advocates and unions in the award.

PN1642

MS CARTER: Can I just say something on that?

PN1643

MS WALSH: You will need a microphone.

PN1644

MS CARTER: Sorry, I'll go over there.

PN1645

THE DEPUTY PRESIDENT: Yes, please do, Mary Lou.

PN1646

MS CARTER: The Australian Law Reform Commission has done - or was it - yes, the Australian Law Reform Commission, I'm sure it was, that did an equality, capacity and disability in Commonwealth laws. It was a public inquiry - number 41, I think it was - and it looked specifically at representation. It wanted to get rid of the supported or substituted decision‑maker and refer to representatives of people with disabilities who couldn't make decisions for themselves.

PN1647

There has got to be some way, you know, that - there is a way to incorporate the right of a person with a disability who can't make decisions for themselves to be represented and the Australian Law Reform Commission has done this extensive inquiry, and all states and territories I think are following up on that. I know the New South Wales Law Reform Commission is looking at it right now.

PN1648

THE DEPUTY PRESIDENT: Thanks, Mary Lou. That's very helpful. It may be that it's a new whole clause or it may be that it's sprinkled throughout the award where appropriate; but it does seem to me to suggest a body of work that would need to be done by a small group to look at the award and see where you could reflect that. Mary Lou, would you be interested, given your knowledge of the Australian Law Reform Commission report, in being involved in a small group?

PN1649

MS CARTER: Absolutely, yes. Certainly.

PN1650

THE DEPUTY PRESIDENT: On the employee side, where would we draw the intellectual capacity for - - -

PN1651

MS SVENDSEN: I'll have a look at anything that's put on the table. Look, I'm not even saying don't give it a shot. I'm just saying to you that I think the Commission will say no.

PN1652

SPEAKER: Well, I think we would have to approach it by not amending the model terms, but drafting a definition or an additional - - -

PN1653

THE DEPUTY PRESIDENT: Yes, that's right. It depends on where you put it.

PN1654

MS SVENDSEN: An additional provision would be a much better way of going about it, because I just think they'll look at number 6 and they'll go, "No, we're not changing it because it's a standard - - -"

PN1655

THE DEPUTY PRESIDENT: Yes, sure.

PN1656

MS SVENDSEN: "Because this is a standard provision." The idea of looking at something additional is probably more likely to be successful.

PN1657

MS WALSH: Through you, your Honour - Leigh, the issue which we as parents and carers struggle with is, I guess, the issue of intellectual disability as opposed to physical disability and the fact that supported employment - i.e., in this case, ADEs - are not for profits. They are pretty much prize‑takers, not prize‑makers. Ignoring the capacity to pay issue, even within an ADE there needs to be a better recognition within the award of issues faced by people with intellectual disability as opposed to that blanket label of people with a disability. Maybe it's just recognising that the most people - - -

PN1658

MS SVENDSEN: I'm not unsupportive. In fact I'm completely supportive of what you are actually talking about.

PN1659

MS WALSH: All right, yes.

PN1660

MS SVENDSEN: I'm just saying I don't think we can change that clause because, you know, the Act is pretty specific around some of these things and so we have to find another way around it. I'm not opposed - - -

PN1661

MS WALSH: We're open to advice - - -

PN1662

MS SVENDSEN: That's what I'm actually saying. I'm saying don't try this clause. Do something else.

PN1663

THE DEPUTY PRESIDENT: So see what I've written - - -

PN1664

MS SVENDSEN: Yes.

PN1665

THE DEPUTY PRESIDENT: I've got you on a working group. I mean, I think this is one of the - of all the things you have talked about, this is the sort of thing that calls for a small group to actually work together solidly on something. I'm not suggesting it will necessarily be able to be done by the next couple of meetings, but Mary Lou has got capacity; Leigh, you are the master drafter - - -

PN1666

MS SVENDSEN: No, I'm not.

PN1667

THE DEPUTY PRESIDENT: Chris, you've got a very good understanding of the issues. You have got your own union background. It helps you think in terms of representation and the role of democracy in that process, and freewill being retained on the part of the person with the disability; so will you three work together on this?

PN1668

MR CHRISTODOULOU: I'm happy - but you said you would rather see a draft first.

PN1669

MS SVENDSEN: No, I would rather see a draft first.

PN1670

THE DEPUTY PRESIDENT: It's not going to be as effective unless you're in the middle of it, helping the drafting - - -

PN1671

MS SVENDSEN: Yes, but also there is a time issue and I'm just going to delay everybody. There are some things I can do - - -

PN1672

MR CHRISTODOULOU: It may well be what we do is do the draft first and then we'll meet with Leigh.

PN1673

THE DEPUTY PRESIDENT: Yes.

PN1674

MR CHRISTODOULOU: That way - yes, so - - -

PN1675

THE DEPUTY PRESIDENT: I'll let you figure that out.

PN1676

MR CHRISTODOULOU: Yes, we'll work it out.

PN1677

THE DEPUTY PRESIDENT: Yes, you'll work it out, but at the moment my notes - and obviously the transcript will reflect will reflect the slight ambiguity - say that you're going to work together on it, because I think it has got great potential. It could be, you know, quite a breakthrough provision.

PN1678

MS WILSON: Can I just ask - my understanding had been that EBAs were not going to be used in this sector because of the, you know, capacity to actually understand what was being put to them. Obviously that has changed since - in the last few years - - -

PN1679

MR CHRISTODOULOU: I'm not sure where your understanding came from. There have been EBAs in this sector for a long time.

PN1680

MS WILSON: I know they have and they stopped doing them.

PN1681

MR CHRISTODOULOU: Well, we have done one - - -

PN1682

MS WILSON: Yes, I know you have.

PN1683

MR CHRISTODOULOU: And we have involved all our carers. We had mass meetings and all the carers were there, and the advocates and the unions. We had the proper ballot.

PN1684

MS CHAN: There is provision in the Fair Work Act for the employees to have a representative and that may be their carers, guardians - - -

PN1685

MS WILSON: What if they didn't have a representative?

PN1686

MS CHAN: Well, the Act also mandates that employers take more reasonable steps to ensure that employees actually understand the content of the agreement. My understanding is that a lot of employers in this industry have gone to, you know, the effect of obviously trying to keep EAs as simple as possible, including pictures in the actual enterprise agreement to enable individuals with disabilities to actually understand.

PN1687

MS WILSON: Margaret, for an EBA to be understood - they are quite complicated. You know that.

PN1688

MS CHAN: Certainly I do, but - - -

PN1689

MS WILSON: Don't tell me that they have understood, because I don't believe that.

PN1690

MS CHAN: But it doesn't do away with the employer's obligation to try to make sure that the employees are understanding what they're voting on.

PN1691

MS WILSON: Yes.

PN1692

THE DEPUTY PRESIDENT: I would also assume there isn't a fiction out there in the mainstream community about people's understanding of EAs before they vote on them, as well, but I didn't say that.

PN1693

MS WILSON: No, I know, and that's exactly my point, isn't it, that here we are, we've got in mainstream that they don't understand them.

PN1694

THE DEPUTY PRESIDENT: Yes.

PN1695

MS WILSON: And I've attended meetings where the employers have presented EBAs and they have not - you know, there has been no understanding. That comes, I think, back to the point here that, you know, yes, there is representation, there are carers, there are parents, there are advocates, but there are many who do not have access to this and, you know, it's the same when - you know, we're looking at right across the board. There are people who don't understand what the process is.

PN1696

THE DEPUTY PRESIDENT: But this award is not going to be able to deal with that.

PN1697

MS WILSON: No, but it goes further than that.

PN1698

THE DEPUTY PRESIDENT: I mean, I understand it arises in your mind because of the conversation that you're having.

PN1699

MS WILSON: Yes.

PN1700

THE DEPUTY PRESIDENT: But it's 10 to 4, and I think we just need to park that. You know, if there is to be any adjustment to the EA side of it, it will come through the Act.

PN1701

MS WILSON: Yes, but it brings what Mary is saying - - -

PN1702

THE DEPUTY PRESIDENT: Sure.

PN1703

MS WILSON: - - - in regard to the position of parents, carers, representatives - - -

PN1704

THE DEPUTY PRESIDENT: Remember, there is a provision in the Act around "genuinely agreed" and the Commission approving an agreement must be satisfied that there was genuine agreement, so submissions I'm sure have been and could be made. If the member of the Commission is not satisfied that there was genuine agreement - - -

PN1705

MS WILSON: Look, I know all of that. It's just - - -

PN1706

THE DEPUTY PRESIDENT: - - - they will not approve the agreement. All right. I don't think we have got time now to open up any new topics. As it happens, I think we have done a pass through just about everything, which is a good thing. Within this set of notes and within the transcript, both are gone through. We will be able to identify an agenda for the next meeting, but I think there will be a point at which we have to launch - either on the next occasion or soon thereafter - into the bigger question of all the tools.

PN1707

We might find that we go somewhere with it or we might find we come to an impasse fairly quickly, anyway, if it's too big a challenge, because it is in fact the challenge that you have been working with all this time and where we've ended - or, rather, the progress that we have made is to come to the variations for the supported wage that we've come to. Anything else for today? Are you happy to start at 10.00 on the next occasion again?

PN1708

MS WALSH: That's the 21st, isn't it?

PN1709

THE DEPUTY PRESIDENT: 21 April.

PN1710

MS WILSON: Then the next one - is that a Friday and a Monday?

PN1711

THE DEPUTY PRESIDENT: I can't tell you now. Grace is in charge of the calendar.

PN1712

MR CHRISTODOULOU: The 21st is a Friday.

PN1713

MS WILSON: Yes. The next day is Anzac Day.

PN1714

MR CHRISTODOULOU: Your Honour, sorry, I should have been more attentive to what you were just saying. The next day that we meet will be our first agenda - - -

PN1715

THE DEPUTY PRESIDENT: Only a.m.

PN1716

MR CHRISTODOULOU: Yes, but our first agenda item will be what?

PN1717

THE DEPUTY PRESIDENT: SWS - that variation that we discussed today.

PN1718

MR CHRISTODOULOU: Okay, fine.

PN1719

THE DEPUTY PRESIDENT: Really we need to try and nail it.

PN1720

MR CHRISTODOULOU: Okay.

PN1721

THE DEPUTY PRESIDENT: So people will need to, you know, come ready to reach agreement, please.

PN1722

MR CHRISTODOULOU: So that will be a bit of a priority.

PN1723

THE DEPUTY PRESIDENT: Just on these notes, because they are my aide‑memoire and really they have the status of - if I was sitting here writing my own handwritten notes, these notes would be the same as that and I'm just making them more transparent to you, so I don't see that they're appropriate to go up on the Web because they're just full of- - -

PN1724

MR CHRISTODOULOU: No.

PN1725

THE DEPUTY PRESIDENT: They're incomplete and so on, but would you still like them as a - - -

PN1726

MR CHRISTODOULOU: Yes.

PN1727

THE DEPUTY PRESIDENT: We would still keep the confidentiality. Okay.

PN1728

MR CHRISTODOULOU: How long before the transcript - we normally can see that?

PN1729

THE DEPUTY PRESIDENT: Grace, can you address that question.

PN1730

THE ASSOCIATE: A couple of days.

PN1731

MR CHRISTODOULOU: A couple of days.

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