DECISION

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

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

4 yearly review of modern awards – Supported Employment Services Award 2020.

[1] On 3 December 2019, we published a decision 1 concerning this award dealing with various issues that had arisen in the conduct of the 4 yearly review. One of those issues concerned the rate of superannuation contributions required to be paid by employers covered by this award in respect of employees with a disability being paid less than $450.00 per month. The current provision (contained in clause 20.5 of the Supported Employment Services Award 2020) requires employers to pay either 3% of ordinary time earnings or $6.00 per week, whichever is the greater. We determined in the decision to increase this to the greater of 9.5% or $15.00 per week. In relation to the cost impact upon employers of this decision, we said:

“[383]....We propose to deal with this issue by giving the variation a prospective date of operation of 1 October 2020, which will allow ADEs to prepare and also to engage with the Commonwealth about the issue. This is reflected in the draft determination in Attachment A to this decision. However, in accordance with the timetable set out in paragraph [380] above, we will invite further submissions concerning the operative date to be filed by 17 December 2019.”

[2] On 21 January 2020, and after the receipt of further submissions, we issued a statement 2 which, among other things, further dealt with the issue of superannuation. We modified the form of the variation in response to a consensus position advanced by the parties. In relation to the issue of the operative date, we said:

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

[3] We have not been advised or, nor are we aware of, any response given by the Commonwealth Government as envisaged in our 21 January 2020 statement. We do not consider that this variation can continue to be deferred indefinitely whilst awaiting such a response. As we found in our 3 December 2019 decision, the current superannuation provision does not meet the modern awards objective and “only serves to visit an arbitrary and discriminatory detriment upon the lowest paid disabled employees”. 3 Employers in the industry have now been aware for approximately 10 months that the rate of superannuation contributions will be increased. Taking this into account, but also having regard to the effect of the COVID-19 pandemic upon the operation of Australian Disability Enterprises, we provisionally consider that an operative date of 1 January 2021 is appropriate. We will allow interested parties a period of 14 days to file any submissions in response of this provisional view.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 8179

 2   [2020] FWCFB 343

 3   [2019] FWCFB 8179 at [381], [383]