The Fair Work Commission (FWC) has conducted a final hearing in the long running SES Award review. The hearing involved oral submissions by the Award review parties and cross examination of various witnesses regarding the determination of wages for employees with disability and the business practices of disability enterprises. Witnesses included CEOs, management, and staff of Disability Enterprises and two supported wage assessors.Advocate parties made oral submissions disputing the legitimacy of the FWC’s proposed wage and classification structure for the SES Award, citing Section 153 of the Fair Work Act, which precludes the use of discriminatory terms in modern Awards. The advocate parties also argued that the Supported Wage System (SWS) did not breach Section 153 and so could be used to determine pro rata wages for employees with disability. They also disputed any perceived adverse impacts resulting from the adoption of the SWS as the sole wage assessment mechanism in the Award. The advocate parties’ other arguments cited the need for compliance with the Social Security and Disability Discrimination Acts as well as compliance with various international conventions and treaties relating to the rights of people with disability.Employer parties’ submissions included arguments emphasising the importance of factors other than productive output (especially work value) when determining the wages of employees with disability and whether the proposed classification structure would constitute a program of support under Social Security Law. Issues relating to the findings and recommendations of the wage structure trial were also covered, including the practicality of its implementation and the timeframes that might be required for the conduct of productivity assessments and supplementation of wage increases.A parent advocate raised concerns about service closures and job losses and the lack of consultation with employees with disability during the Award review process.Finally, the Department of Social Security’s (DSS) counsel noted that it had provided previous submissions examining what the proposed structure would mean in practice, including likely costs and the time needed for implementation. DSS acknowledged the benefits of supported employment and its role in fostering increased social and economic inclusion. While DSS agreed that increased wages were needed as well as independent wage assessments these could not be achieved in the short term due to the sheer scale involved in introducing the proposed wage structure.DSS also accepted that viability concerns for supported employers remained and that it was important to ensure their sustainability and ongoing employment opportunities for people with disability. Of the issues most of concern to DSS and any government policy response required, the FWC advised that DSS should wait until more detail was provided about any final wage structure to be included in the Award.The FWC will shortly issue some further direction to the parties, including a possible opportunity for final written submissions.

NDS expects that a final decision on a new wage structure and a variation to the SES Award will be made by the FWC later this year. In the interim NDS will continue to advocate to and consult closely with the federal government regarding the likely impacts of any new wage structure for supported employment.NDS would like to thank the members who provided written and oral submissions during the Award review as well as Australian Business Lawyers and Associates for their representation of the employer parties during the proceedings. NDS will continue to keep members informed of developments in this important matter.