[2010] FWAFB 1980 |
FAIR WORK AUSTRALIA |
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 14—Variation of modern award
SUPPORTED EMPLOYMENT SERVICES AWARD 2010
[MA000103]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 15 MARCH 2010 |
[1] This is an application by Australian Business Industrial (ABI) to vary the Supported Employment Services Award 2010 1 (the modern award). The application was made pursuant to s.576H of the Workplace Relations Act 1996 and was not determined by 31 December 2009. The application will be determined by Fair Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.2
[2] National Disability Services Limited and the Chamber of Commerce and Industry Western Australia have filed submissions indicating their support of ABI’s application. The Australian Council of Trade Unions (ACTU) and the Liquor, Hospitality and Miscellaneous Union (LHMU) have filed material generally supportive of the application but some matters remain in contest.
[3] The variations agreed amongst the parties make both minor corrections and more significant adjustments to the current position or ‘stream’ descriptors within the classification structure, and provide for a new allowance for employees engaged for the major portion of a day or shift in cleaning toilets. ABI also seeks to add three new streams to the twelve currently provided. Two of these these three, recycling and commercial biscuit and pastry making, are agreed in principle with the ACTU/LHMU, although some issues of detail require resolution. The remaining additional stream sought, transport and delivery, is not supported by the ACTU/LHMU.
[4] As we are of the view that the agreed matters can properly be reflected in variations to the modern award it is necessary to deal in this decision only with the contentious aspects of the classification structure.
The Grade 1 variation
[5] ABI seeks to include a new paragraph in the definition of a Grade 1 employee. The modern award definition for Grade 1, and the relevant part of the definition for Grade 2, in Schedule A to the modern award are as follows:
“Schedule A - Classifications
A.1 Grade 1
A.1.1 An employee engaged in this grade will undertake up to 38 hours induction training which may include information on the employer’s business, conditions of employment, introduction to supervisors and fellow employees, training and career path opportunities, work site layout, work and documentation procedures, occupational health and safety, equal employment opportunity and quality control/assurances.
A.1.2 An employee at this level performs basic routine duties essentially of a manual nature and to their level of training. Persons at this level exercise minimum judgment and work under direct supervision whilst undergoing structured training to Grade 2.
A.1.3 Examples of duties at this grade include basic cleaning within a kitchen or food preparation area including cleaning of dishes, tins and utensils, labouring, sorting, packing, labelling, clipping, assembly document preparation, routine basic assembly tasks and basic picking, pruning and cultivation activities.
A.1.4 Art Union seller
This grade applies to Art Union sellers whose performance is at or near the minimum agreed level.
A.2 Grade 2
A.2.1 An employee who has completed at least three months’ structured training so as to enable them to perform work within the scope of this level.
A.2.2 An employee at this level:
(a) Performs work above and beyond the skills of an employee at Grade 1 and to the level of their training;
(b) Works under direct supervision either individually or in a team environment;
(c) Understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviation/faults.”
[6] ABI seeks to add a new paragraph to the Grade 1 definition immediately following cl.A.1.1 in the following terms:
“A.1.2 This Grade is also for workers with a disability who are undergoing entry level training to determine whether they are suitable for placement in a Supported Employment Service. It may also apply to workers with a disability who, after assessment, are deemed unable to meet the criteria applicable to a position at the Grade 2 level, or who - as a result of declining work performance arising from their disability - have been regressed to this level in accordance with Clause 14.5 (f) of this Award.”
[7] ABI submitted that the change is necessary for two reasons. The first is to ensure that employees undertaking entry level training and assessment are properly covered. The second is so that employees with a disability may be permanently classified at Grade 1 if they are deemed unable to meet the criteria to reach Grade 2 or if they have been reclassified to Grade 1 as provided for in cl.14.4(f) due to a regression in their disability.
[8] ABI submitted that it is commonplace for classification streams to provide for structured induction and competency training which are ‘time bounded’ and which act as a measure of competency. It was put that in supported employment there are some employees whose capacities are such that they cannot achieve, or retain, the fundamental capacity required to comply with the descriptors at Grade 2 and that such employees should not be over-graded. It was stressed that overall there were only a small number of employees involved.
[9] In opposing the ABI variation the ACTU/LHMU relied upon arguments put during the consultations which preceded the making of the modern award. They submitted that the purpose of Grade 1 is to allow an employee to receive training and that the work, specified in general terms only, is incidental to that purpose. Because the modern award already makes it clear that Grade 1 is an entry level position providing for induction and entry level training, the variation is unnecessary. All employees should progress to Grade 2, after receiving the necessary training. This is reflected in cl.A.2.2(a) which provides that the work of a Grade 2 employee should be above and beyond the skills of an employee at Grade 1 and to the level of their training.
[10] The ACTU/LHMU submission made a distinction between the assessment of an employee under a wage assessment tool and the classifying of an employee into an appropriate grade in the relevant stream. For example, using a wage assessment tool an employee may be assessed at 30% of the award rate for a particular job, while their award classification may be Grade 3 in the printing/bookbinding stream. In querying the number of employees whose capacity had been assessed at Grade 1 and that the Grade 1 rate had been used widely as a basis for application of wage assessment tools, the ACTU/LHMU contended that if the ABI proposal is accepted, misunderstandings might arise about award-based wages and employment of workers at Grade 1.
[11] We deal first with the question of regression and ABI’s reliance on cl.14.4(f). Clause 14(4)(f) relevantly provides:
“(f) An employee with a disability will not have their rate of pay reduced as a result of a wage assessment made pursuant to clause 14.4(a). This clause does not cover the circumstance where the wage of an employee with a disability may need to be reduced due to the regression of the employee’s disability. However, a wage assessment that determines a lower percentage than an earlier wage assessment of the employee against the same duties is of no effect unless the reduction in percentage is solely due to the regression of the employee’s disability. Before the wage of an employee may be reduced the employer must exhaust all reasonable training options and options to allocate the employee new tasks to avoid the regression. Where regression of wages is provided for in the wage assessment tool against which the employee was assessed, regression may only occur in accordance with the method provided for in that tool.”
[12] While it is true that the modern award permits an employee’s wage to be reduced solely by reason of the regression of their disability, it is clear that what is intended is that an employee whose work capacity has been reduced by a worsening of their disability may have a reduction in the percentage of the relevant minimum wage. In supported employment a decline in productive capacity consequent upon regression of an employee’s disability would be expected to occasion, subject to the workings of the relevant tool, an equivalent reduction in the employee’s wage. In this context it should be remembered that some employees are engaged at 20% and even 10% productive capacity. Assessments at that level for a Grade 2 employee result in an hourly minimum wage for the employee of $2.95 and $1.48 respectively. We are unable to accept that cl.14(4)(f) can be relied on to reclassify an employee from a higher grade to Grade 1. It deals with assessment of capacity and not with classification issues as such.
[13] Turning now to the nature of the Grade 1 classification, in our view Grade 1 in the modern award, like the entry level provisions in many other awards, should be an induction and training classification. While some illustrative duties are set out at A.1.3, they are examples only of the basic, routine manual duties requiring minimal judgement and to be performed “under direct supervision whilst undergoing structure(d) training to Grade 2”.
[14] It is relevant also that Grade 1 is not the only point at which the classification structure accommodates work performed at a very basic, uncomplicated level. We note in this regard that employees at Grade 2 work under direct supervision at such tasks (to give but several examples) as, wiping tables, removing food plates, rudimentary marking, basic garden labouring, undercoat painting and repetition work on automatic machines - although there is other, more complex work comprehended within some Grade 2 streams.
[15] In the normal course under the modern award, after induction and training, an employee would be classified either at Grade 2 or a higher grade relevant to their duties. The employee’s ongoing assessment under the relevant tool would then occur - against the specific criteria appropriate to their vocational stream. For example, an employee with a disability employed as a forklift driver on completion of the Grade 1 induction period would be classified at Grade 3 and receive the percentage of the Grade 3 rate appropriate to their capacity after assessment against the Grade 3 requirements for a fork lift driver using the relevant tool. While Grade 1 employees receive an initial assessment for payment purposes during their period under training that assessment is, necessarily, of an interim nature pending their classification at the relevant grade and following assessment under the criteria relevant to their work. Grade 1 is not normally the classification level at which assessment is made for ongoing purposes.
[16] Having dealt with the generality of classification under the modern award there may however be an employee, in the words of the ABI submission, whose capability is such that they cannot achieve ‘the fundamental capacity’ to meet the requirements of any other grade. ABI submitted that such an employee should not be ‘over-graded’ by being classified at Grade 2 but should be classified at Grade 1 on an on-going basis.
[17] It is certainly the case that, like the first level of Art Union seller separately provided for at A.1.4 of Grade 1, an employee with this limited capacity would receive an assessed capacity at a very modest level. While assessment tools may vary, the Supported Wage System tool provides for a minimum assessment of 10%. At 10% capacity the difference, over a 38 hour week, between the Grade 1 and Grade 2 pay rates is $1.67 per week. At 20% capacity the difference per 38 hour week between the Grade 1 and Grade 2 rates is $3.34. It is very unlikely that an employee so disabled would undertake full hours of duty.
[18] In order to be classified at Grade 2 an employee requires at least three months structured training. It is implicit that after the training an employee will be able to carry out Grade 2 duties. If an employee is simply unable to carry out Grade 2 duties then we agree with ABI that they should not be classified at Grade 2. In our view, however, the modern award already provides for that outcome. When the training required by A.2.1 has not met with success, the employee remains at Grade 1 and continues to be assessed according to their duties and the relevant tool. It follows that the variation sought by ABI is unnecessary.
[19] In acknowledging that an employee who is incapable of working at Grade 2 need not be classified at Grade 2, we emphasise that Grade 1 should not be the default level at which permanent assessment takes place. Assessment should occur after the employee has been classified at Grade 2 or above and in the context of the requirements of the relevant employment stream. The change sought by ABI might have the unintended consequence of undermining the way in which this vulnerable group of employees is classified and assessed. This is a further reason against its acceptance.
[20] For these reasons we have decided not to make the variation sought by ABI to the Grade 1 definition.
Recycling
[21] The parties have agreed that because recycling is work currently performed by supported employment services, the modern award should contain recycling classifications and that the duties specified should span three grades. The sole disagreement with which we are concerned is the positioning of the work within the seven level grading structure. The ACTU/LHMU contend that the recycling classifications should span Grades 3, 4 and 5. ABI submits that Grades 2, 3 and 4 are more appropriate.
[22] The work covered at the first level of recycling calls for general labouring and sorting work, shredding and loading, bailing and strapping equipment. In this award such work is classified at Grade 2. Similarly the next level of recycling functions, the operation of bailing and strapping equipment and the operation of recycling equipment, is properly graded, relevant to the work performed in the other streams in the modern award, at Grade 3, as are the next group at Grade 4.
[23] There are some inconsistencies between the grading of several functions under the modern award and under the Waste Management Award 2010. 3 We note that the weighbridge operator classification is in Grade 4 in the modern award with a minimum wage of $15.89 per hour and the equivalent classification in the Waste Management Award 2010 is in Level 3 but with a minimum wage of $15.81 per hour.
[24] In our view the appropriate levels for the recycling classifications are Grades 2, 3 and 4. We shall vary the modern award accordingly.
Commercial biscuit and pastry making
[25] We have accepted the classifications jointly proposed by the parties for the commercial biscuit and pastry making stream. The parties are in disagreement as to the level at which the classification of biscuit forming machine operator should be graded. We have had regard for the skill and responsibility attaching to set up, control and efficient operation of production plant. Grade 2 accommodates the general hand and line hand duties, which call for such functions as loading, unloading, cleaning and washing utensils. In our view the level of responsibility of a competent forming machine operator is above the level of Grade 2 and the position should be graded at Grade 3. The modern award will be amended so that the following classification description is included in cl.A.3.3:
“Biscuit forming machine operator able to set up, control and efficiently operate one or more pieces of biscuit forming and ancillary equipment and maintain all webs.”
Transport and delivery
[26] As noted, ABI proposes the inclusion of a transport and delivery stream. We note that there is disagreement, not only as to the inclusion of the proposed stream but also as to whether there are such duties performed by employees of a supported employment service with a disability who are in receipt of a percentage of the appropriate rate. There is no information before us as to the extent to which employees with a disability, and paid subject to a wage assessment tool, are engaged by supported employment services in driving grades. While it is said that the grading of the proposed driving classification has been “properly done” there are some outstanding issues. For example, some of the classification definitions do not appear to be consistent with the provisions of the Road Transport and Distribution Award 2010. 4 We refer in particular to delivery distances from a depot. We reject this proposal.
Remaining issues
[27] A range of deletions, additions and adjustments have been made to the classification structure in response to the parties’ submissions, in most cases maintaining alignment with key classifications in modern awards. Proposals to alter the minimum wages payable for cleaning and stores work have not been accepted.
Transitional provisions
[28] We shall include the model transitional provisions being the model commencement and transitional clause and the model phasing schedule. The model phasing schedule will become Schedule A and the other schedules will be renumbered.
PRESIDENT
1 MA000103.
2 Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009.
4 MA000038.
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