The Fair Work Commission (FWC) has issued a Decision [pdf] and Draft Determination [pdf] varying the Supported Employment Services (SES) Award 2020 to include a new wages structure for employees with disability. The decision is a lengthy one, covering the Report on the Trial of the FWC’s original proposed wages structure, an outline of the parties’ positions, evidence submissions, and a consideration of the jurisdictional arguments raised by the Advocate parties.  The new wages structure proposed by the FWC closely resembles the one first proposed in their decision of December 2019. That is, there are two new grades for supported employees and seven mainstream grades.  The two supported employee grades, A and B, will have starting rates of $4.75 and $11.00.  The FWC has identified a three-year phase-in of the new wage rates, which will commence on 1 May 2023 and end on 1 May 2026.  The rates for grades A and B on 1 May 2026 will be $7 and $14.  Employees with disability can also receive an SWS assessment, which would reduce their wage rate if their assessed productivity rate is less than 100 per cent. For example, the Grade B rate for an employee assessed at 50 per cent productivity would be $5.50 after 1 May 2023.  The absolute minimum wage rate in the proposed wages structure is now $2.75, which equates to the traditional 12.5 per cent minimum used by the SWS. No employee with disability will have their pay rate reduced following the introduction of the new wages structure.  The employer parties recently raised the following issues with the FWC on the cost and practicality of conducting over 14,000 additional SWS assessments: 

The FWC has proceeded on the basis that the assessments will be funded by the Commonwealth, sufficient assessors will be made available, and the three-year transition period will allow time to conduct all SWS assessments.  Importantly, the FWC has indicated it will carefully monitor the implementation of the wages structure during the transitional period. Where there is evidence that the wages structure is endangering the viability of employers, the FWC wants this brought to their attention. The FWC will then consider making any necessary variations to the transitional arrangements or the SES Award.  The FWC also made some important observations about the Advocate parties’ arguments that the FWC did not have the jurisdictional authority to include the new wages structure, because it breached section 153 of the Fair Work Act (among other legislation cited). Following a submission by the Department of Social Services (DSS) that clarified the interpretation of various legislation and social security provisions cited by the Advocates, the FWC wholly rejected the arguments of the Advocate parties.  The FWC’s decision also includes an amended definition of the term “supported employment services”. It now has the meaning given to it in section 7 of the Disability Services Act (DSA) 1986 (Cth). Given the recent decision by the Commonwealth to review and replace the DSA, that definition may need to be revisited by the FWC.