TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
Tasmanian Trades and Labor Council
NOMINATED PRIVATE SECTOR AND PUBLIC SECTOR AWARDS
Award variation - nominated private and public sector awards - "Supported Wage System" - application approved - orders to issue - operative from 23.2.96
REASONS FOR DECISION
By application dated 28 November 1995, the Tasmanian Trades and Labor Council (TTLC) sought to vary nominated awards of the Commission to reflect a decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) on 10 October 19951 dealing with the implementation of the "Supported Wage System".
In that decision the AIRC determined a model "Supported Wage System" clause to be inserted in various federal awards to facilitate the engagement of workers with disabilities in open employment at a rate of pay commensurate with the employee's assessed productive capacity. The award variations were designed to complement other entitlements available to such employees through the social security system. The decision referred to the on-the-job support available to the employee and the employer, together with the financial support provided to the employer to defray the additional costs of employing a person with a disability.
We were informed that the proposed clause would not apply to workers in places of employment known as "sheltered workshops", "activity therapy centres", or the like which receive funding under the federal Disability Services Act 1986.
The TTLC submitted, and the other parties agreed, that the clause was not in conflict with section 79 of the Tasmanian Industrial Relations Act 1984 which provides for the employment of infirm persons at a wage less than that fixed by a relevant award, and that the two provisions, that is the model clause and section 79, could co-exist successfully. The Commission was informed that similar arrangements existed in other States. Further, the TTLC contended, a "body of knowledge and expertise" previously not available to the Commission in these matters would be able to provide assistance. To amplify that point and to explain the work of the Supported Wage Unit within the federal Department of Human Services and Health, the Manager of the Supported Wage Management Unit in Tasmania gave evidence in relation to the way in which a supported wage placement would be effected; the people to whom the program was directed and the eligibility criteria; the number of assessors involved, and their qualifications and training; and consultation with employers and relevant trade unions.
The Commission was advised that at 30 November 1995 the Australian Commission had amended 201 awards so as to include the supported wage clause which had application across all States, including 4 awards which applied only in Tasmania. Although progress was said to be slow, there were approximately 200 applications pending in the federal area.
The TTLC addressed progress in the other state jurisdictions, notably in Queensland and South Australia. In New South Wales and Victoria parties had agreed, as an interim measure, to use the existing slow worker exemption provisions and were negotiating a longer term solution. The Western Australian Commission was to hear a supported wage application shortly.
The details of the model clause were addressed and the Commission advised of modifications which had been agreed to ensure the clause was consistent with the Tasmanian legislation and practices.
Following an adjournment to allow the parties to negotiate further the application of the clause to awards of this Commission, the parties were able to present a consent order and lists of public and private sector awards to be varied.
The draft order set out the "supported wage rates" and conditions to apply to eligible employees. It also outlined the assessment process including provisions for representation of the employee. The draft required assessment instruments setting out the percentage of the award rate to apply to an individual employee to be lodged with the Commission. The percentage wage rate applicable was required to be reviewed at least every twelve months. The percentage assessed was to apply to the wage rate only. All other conditions of employment were to be calculated on a pro rata basis.
Employers of supported wages participants would be required to make changes in the workplace to assist the employee in performing his or her duties. Changes needed might include the redesign of duties, working time arrangements and work organisation. Other employees at the workplace were to be consulted on these changes.
In order to make an adequate assessment of the employee's capacity, a trial period of 12 weeks which in some cases could be extended by up to 4 weeks, was available which would attract a minimum payment of $45 per week. After the trial period if the employment relationship was to continue a new contract of employment was to be required.
The Tasmanian Chamber of Commerce and Industry and the Minister for Public Sector Management signified their support for the proposal, as did the Tasmanian Automobile Chamber of Commerce and the Australian Mines and Metals Association (Incorporated). The latter organisation added that it intended to advise its members to vary section 55 and Part IVA agreements, as appropriate, to include a provision for the supported wage system. All employers should be aware that if their activities are regulated by a registered agreement it would be necessary to vary their agreement to enable employees to be engaged at a rate less than that set out in their agreement.
We are satisfied that the proposed scheme has substantial merit and is in the public interest and we endorse the views of the Federal Bench as expressed in its decision of 10 February 1994. It will be up to the parties to make the system work and they have the support of the Commission in their endeavours.
We have considered the submission by the Australian Mines and Metals Association (Incorporated) that enterprise specific modifications in enterprise awards might be addressed by "subsequent award modification/variation processes" and we believe the concerns of the Association will be met by the model subclause which we consider meets the objectives of our decision.
Accordingly the nominated awards of the Commission set out in Appendices A and B will be varied along the lines of the model subclause which will be inserted wherever possible in the Wage Rates clauses.
The definitions and eligibility provisions have been reworded to enable the model to fit more satisfactorily with the format of Commission awards.
Existing "Slow and Infirm Worker" award provisions will be deleted. The orders will be issued by the appropriate members of the Commission and will be effective from 23 February 1996.
Date and place of hearing:
PRIVATE SECTOR AWARDS
Supported Wage System
(a) Eligibility criteria
Subject to this subclause an employer may engage employees at a supported wage rate (as set out in paragraph (c) of this subclause) who meet the impairment criteria for receipt of a Disability Support Pension and who, because of their disability, are unable to perform the range of duties to the competence level normally required for the class of work for which they are engaged.
PROVIDED that this subclause does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers' compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their current employment.
PROVIDED FURTHER that this subclause does not apply to employers in respect of their facility, programme, undertaking, service or the like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider and sheltered employer to people with disabilities who are in receipt of or are eligible for a disability support pension, except with respect to an organisation which has received recognition under s.10 or under s.12A of the above Act, or if a part only has received recognition, that part.
(b) For the purposes of this subclause:
(i) "Supported Wage System" means the Commonwealth Government System to promote employment for people who cannot work at full award wages because of a disability.
(ii) "Accredited Assessor" means a person accredited by the management unit established by the Commonwealth under the Supported Wage System to perform assessments of an individual's productive capacity within the Supported Wage System.
(iii) "Disability Support Pension" means the pension available under the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, as amended from time to time, or any successor to that scheme.
(iv) "Assessment instrument" means the form provided for under the Supported Wage System that records the assessment of the productive capacity of the person to be employed under the Supported Wage System.
(c) Supported wage rates
Employees to whom this subclause applies shall be paid the applicable percentage of the minimum rate of pay prescribed by this award for the class of work which the person is performing according to the following schedule:
(Provided that the minimum amount payable shall be not less than $45 per week.)
(d) Assessment of capacity
For the purpose of establishing the percentage of the award rate to be paid to a supported wage employee under this award, the productive capacity of the employee will be assessed in accordance with the Supported Wage System and documented in an assessment instrument by either:
(i) the employer and a union party to the award, in consultation with the employee or, if desired by any of these;
(ii) the employer and an accredited Assessor from a panel agreed by the parties to the award and the employee.
(e) Lodgment of assessment instrument
(i) All assessment instruments under the conditions of this subclause, including the appropriate percentage of the award wage to be paid to the employee, shall be lodged by the employer with the Registrar of the Tasmanian Industrial Commission.
(ii) All assessment instruments shall be agreed and signed by the parties to the assessment, provided that where a union which is party to the award, is not a party to the assessment, it shall be referred by the Registrar of the Tasmanian Industrial Commission to the union by certified mail and shall take effect unless an objection is notified to the Registrar of the Tasmanian Industrial Commission within 10 working days.
(f) Review of assessment
The assessment of the applicable percentage shall be subject to annual review or earlier on the basis of a reasonable request for such a review. The process of review shall be in accordance with the procedures for assessing capacity under the Supported Wage System.
(g) Other terms and conditions of employment
Where an assessment has been made, the applicable percentage shall apply to the wage rate only. Employees covered by the supported wage provisions of this subclause shall be entitled to the same terms and conditions of employment as all other workers covered by this award who are paid on a pro rata basis.
(h) Workplace adjustment
An employer wishing to employ a person under the provisions of this subclause shall take reasonable steps to make changes in the workplace to enhance the employee's capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.
(i) Trial Period
(i) In order for an adequate assessment of the employee's capacity to be made, an employer may employ a person under the provisions of this subclause for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding 4 weeks) may be needed.
(ii) During that trial period the assessment of capacity shall be undertaken and the proposed wage rate for a continuing employment relationship shall be determined in accordance with paragraphs (d) and (e).
(iii) The minimum amount payable to the employee during the trial period shall be no less than $45 per week or such greater amount as is agreed from time to time between the parties.
(iv) Work trials should include induction or training as appropriate to the job being trialed.
(v) Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment shall be entered into based on the outcome of assessment under paragraph (c) hereof.
1 Print L5723