Federal Court of Australia

Association for Employees with a Disability v Commonwealth of Australia [2021] FCAFC 36

REASONS FOR JUDGMENT

KERR J:

1    On 18 February 2021, at the conclusion of two days of hearing and oral submissions and following the Court having adjourning briefly, the parties in this proceeding were informed that at least a majority of the Court was of a settled opinion that the applicant’s originating application for relief under s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) should be dismissed as premature. The Court made orders instanter, inter alia, dismissing that judicial review application. The Court advised the parties that reasons for the orders it had so made would be given in due course.

2    I have since had the considerable advantage of reading the joint reasons of Mortimer and Abraham JJ in draft. Their detailed reasons persuasively identify that the relief the applicant seeks, including declaratory relief, has been claimed in respect of a circumstance that has not occurred and may never happen.

3    However, in deference to the submissions advanced by the applicant as earlier had led me to hesitate to join in dismissing the applicant’s application instanter, I should explain that as at the conclusion of the hearing I remained to be satisfied that the final sentence of [377] of the Commission’s December decision (set out in Mortimer and Abraham JJ’s reasons at [118]) might not, on a fair reading, convey the meaning that the applicant had submitted for.

4    On the applicant’s case that sentence was to be understood as the Commission having made a final and operative decision to implement the pay structure it had foreshadowed as being its “preferred approach” and having foreclosed the possibility of the parties being further heard as to any “jurisdictional” arguments they might later seek to advance.

5    If I had concluded that the Commission’s “decision” should be read as the applicant submitted it would have been my duty to determine the merits of the proceeding and, contingently, to give attention to whether the declarations the applicant was seeking were to be granted. I take it to be uncontentious that a declaration can be made to the effect that a course of conduct will or will not be unlawful. In Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19; (1972) 126 CLR 297 at 305, Barwick CJ stated that the capacity of the courts to declare that conduct which has not yet taken place will not be in breach of a law “contributes enormously to the utility of the jurisdiction”.

6    Writing extra judicially (French, Justice Robert, “Declarations - Homer Simpson’s remedy - is there anything they cannot do?” (2007) FedJSchol 24) Justice French (as his Honour then was) expressed the view that the making of a declaration on the lawfulness of future conduct can be an exercise of power in federal jurisdiction provided that it arises out of a contemporary controversy in which a party’s freedom of action has been challenged in some way or a right threatened. His Honour noted at [25] that the want of a legal right or cause of action in the applicant is not a bar to the claim for declaratory relief. In the same paragraph his Honour identified that the substantive constraints upon the Federal Court’s power to grant a declaration were those that had been identified by Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406; (1996) 139 ALR 663 (Aussie Airlines) as follows:

•    The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversy. The answer to the question must produce some real consequence to the parties.

•    The applicant for declaratory relief will not have sufficient status if relief is claimed in relation to circumstances that (have) not occurred and might never happen; or if the court’s declaration will produce no foreseeable consequence for the parties.

•    The party seeking declaratory relief must have a real interest to raise it.

•    Generally there must be a proper contradictor.

7    I have identified nothing judicially determined since as would narrow the circumstances in which a declaration is open to be made. In Clarence City Council v Commonwealth of Australia [2020] FCAFC 134, a Full Court of this Court recently referred to and applied the principles expressed by Lockhart J. The High Court has granted special leave to appeal in that proceeding but subject to possible correction in that regard I regard those principles as settled.

8    However, the path to such potential analysis is foreclosed if the foundational premise upon which it is dependent is absent.

9    Notwithstanding my earlier hesitation I am comfortably satisfied that, despite the facially final terms in which the final sentence of [377] of the Commission’s December decision are expressed, the central and critical premise upon which the applicant’s submissions were advanced are to be rejected.

10    The contextually relevant passages of the Commission’s “decisions” that Mortimer and Abraham JJ refer to render it entirely implausible that the single sentence, upon which the applicant relies, is properly to be understood as evidencing that the Commission was then making its final and operative decision to implement the pay structure it had foreshadowed to the parties as being its “preferred approach”. For the reasons Mortimer and Abraham JJ give, I reject that that sentence read fairly in context is open to be understood as the Commission then stating a position incapable of being revised, or even entirely abandoned by it after the conduct of a trial and having had the benefit of further submissions from the parties.

11    To the contrary I am entirely satisfied that read fairly and in context, the sentence the applicant relies upon as constituting the Commission’s “decision” is properly to be understood as conditional and provisional. As the plurality reasons it is to be read having regard to the Commission having expressly kept open the possibility that it might change its mind once it had taken into account such further and additional submissions (including as to jurisdiction) as the applicant might yet advance.

12    On that understanding the applicant was seeking, impermissibly, remedies in respect of an asserted circumstance that not only affected no legal right possessed by the applicant but which also had not occurred and might never happen.

13    The principles in Aussie Airlines articulated by Lockhart J as I have summarised at [6] include that declaratory relief will be unavailable in respect of a circumstance that has not occurred and may never happen. That is the position in these proceedings.

14    With the addition of the above brief observations, I would respectfully adopt the reasoning of Mortimer and Abraham JJ as my own.

15    I join in the orders the Full Court pronounced on 18 February 2021.

Associate:

Dated:    15 March 2021

REASONS FOR JUDGMENT

MORTIMER AND ABRAHAM JJ:

16    On 18 February 2021, the Court made orders dismissing the judicial review application made by the applicant in this proceeding. The Court had indicated that unless a party indicated to the contrary the Court would proceed on the basis that the usual position under s 570 of the Fair Work Act 2009 (Cth) would apply. No party submitted to the contrary and accordingly no order as to costs was made.

17    The Court informed the parties that reasons for the orders would be given in due course. These are our reasons for those orders.

18    The judicial review application relates to two published decisions of a Full Bench of the Fair Work Commission as part of a four yearly review of the Supported Employment Services Award 2010. The four yearly review is being conducted pursuant to s 156 of the Fair Work Act. As we note below, that provision has been repealed, but transitional provisions in the Fair Work Act have preserved its operation for the purposes of review such as the one under consideration here.

19    The application is brought in the Federal Court’s original jurisdiction under the Judiciary Act 1903 (Cth), by the Association for Employees with a Disability, an incorporated association that advocates for the workplace rights of people with disabilities. The applicant’s Rules describe its purpose as:

The purpose of the Association for Employees with Disability Inc is to provide a structure for the ethical, efficient and effective delivery of legal advocacy to people with a Disability in the areas of employment, education and training. The Association aims to achieve its goals by working cooperatively and in partnership with service users, other advocacy agencies, trade unions and government.

20    On 7 July 2020, the Chief Justice determined that the application should be heard by a bench of three judges in the Court’s original jurisdiction.

21    The Commission’s two decisions are dated 3 December 2019 ([2019] FWCFB 8179) (the December decision) and 30 March 2020 ([2020] FWCFB 1704) (the March decision). There are several active respondents to this proceeding, which we describe below. The Commission filed a submitting appearance.

Background

The parties

22    The parties to the proceeding are described in the affidavit of Kairstien Wilson, a lawyer for the applicant, sworn on 22 May 2020, that accompanied the originating application as follows:

The applicant is a body corporate pursuant to section 29(2) of the Associations Incorporation Reform Act 2012 (Vic) and as such may sue or be sued in its corporate name. The applicant has model rules that, amongst other things, describe its purpose, aims and objectives. Annexed to this affidavit and marked KW-1 is a true copy of the applicant’s model rules.

…

The first respondent, the Commonwealth of Australia, participated in the review proceedings described in Part B below through officers of its Department of Social Services (the Department). It owns, administers and funds the Supported Wages System referred to in Part C herein. Officers of the Department are members of the steering committee (the Steering Committee, see further paragraph 98 in respect of this committee) that has been established for the trial contemplated by the eighth respondent’s decision dated 3 December 2019 (in respect of that decision, see paragraph 44 herein). The Department functions as the Secretariat to the Steering Committee and has engaged a consultant for the purposes of the trial.

The second respondent, Australian Business Industrial (ABI), is a registered organisation under the Fair Work (Registered Organisations) Act 2009. It is a body corporate pursuant to section 27 of that Act. The second respondent participated in the review proceedings described in Part B below. In those proceedings, it was the proponent of a new wage assessment tool for employees with a disability covered by the modern award the subject of review. It is a member of the Steering Committee. In a submission filed with the eighth respondent on 17 December 2019, the second respondent supported the wage determination method for employees with a disability that is contained in the eighth respondent’s decision dated 3 December 2019.

The third respondent, National Disability Services, is an Australian public company limited by guarantee (ACN 008 445 485), and as such is a duly incorporated body corporate. The third respondent participated in the review proceedings described in Part B below. It is a member of the Steering Committee. In a submission filed with the eighth respondent in December 2019, the third respondent supported the wage determination method for employees with a disability that is contained in the eighth respondent’s decision dated 3 December 2019.

The fourth respondent, Greenacres Disability Services, is an Australian public company limited by guarantee (ACN 001 157 688) and as such is a duly incorporated body corporate. It is a supported employment service and an Australian Disability Enterprise covered by the Award. The fourth respondent participated in the review proceedings described in Part B below and was a proponent of the second respondent’s wage assessment tool. It is a member of the Steering Committee.

The fifth respondent, Our Voice Incorporated, is an incorporated association (Registration number INC 1500950) under the Incorporated Associations Act 2009 (NSW). An incorporated association is a body corporate, pursuant to section 8(1) of that Act, with the legal powers and capacity of an individual, pursuant to section 11(1) of that Act. The fifth respondent participated in the review proceedings described in Part B below. It is a member of the Steering Committee. In a submission filed with the eighth respondent in December 2019, the fifth respondent supported the wage determination method for employees with a disability that is contained in the eighth respondent’s decision dated 3 December 2019.

The sixth respondent, the Health Services Union, is a registered organisation under the Fair Work (Registered Organisations) Act 2009. It is a body corporate pursuant to section 27 of that Act. The sixth respondent participated in the review proceedings described in Part B below and is a member of the Steering Committee.

The seventh respondent, the Australian Council of Trade Unions, participated in the review proceedings described in Part B below and is a member of the Steering Committee.

The eighth respondent, the Fair Work Commission, is a body established under section 575(1) of the Fair Work Act 2009 (Cth.) (the FW Act) that consists of the people who hold the positions referred to in section 575(2).

The Award

23    The Award is described in the December decision from [9]-[10]:

Clause 4.1 of the SES Award provides that it covers employers throughout Australia who operate “supported employment services” and their employees working in the classifications listed in Schedule B of the award. The expression “supported employment services” is defined in clause 3.1 to mean “a service as defined in section 7 of the Disability Services Act 1986 (Cth)”. Section 7 of the Disability Services Act 1986 contains the following definition:

“supported employment services” means services to support the paid employment of persons with disabilities, being persons:

(a)    for whom competitive employment at or above the relevant award wage is unlikely; and

(b)    who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

Supported employment services were in past times referred to as “sheltered workshops” or “business services” but their contemporary appellation is “Australian Disability Enterprises” (ADEs), and that is how they will be referred to in this decision. ADEs employ non-disabled persons who are covered by the SES Award, but consistent with their purpose the large majority of employees of ADEs are disabled persons.

24    The Award provides, at cl 14, for minimum rates of pay for employees covered by the award, corresponding to a series of grades, from 1-7. The grades correspond to classifications set out in Schedule B to the Award, with the general effect that employment requiring the performance of more complex tasks and corresponding training, experience or qualifications is classed at a higher grade, and attracts a higher minimum rate of pay.

25    At cl 14.4, the Award provides for employees with a disability to be paid a percentage of the minimum rates of pay. The percentage of the rate of pay required to be paid is to be assessed under an “approved wage assessment tool”. Paragraph 14.4(b) provides an exhaustive list of tools that are approved wage assessment tools. There are 30 different approved wage assessment tools in the current form of the award.

26    One of the wage assessment tools is the Supported Wage System: cl 14.4(b)(i).

27    The phrase “employee with a disability” is defined in cl 3.1 of the Award:

means a national system employee who qualifies for a disability support pension as set out in sections 94 or 95 of the Social Security Act 1991 (Cth), or who would be so qualified but for paragraph 94(1 )(e) or paragraph 95(1 )(c) of that Act[.]

This reflects the definition of the phrase in s 12 of the Fair Work Act.

The legislative scheme

28    Section 136 of the Fair Work Act provides:

What can be included in modern awards

Terms that may or must be included

(1)    A modern award must only include terms that are permitted or required by:

(a)    Subdivision B (which deals with terms that may be included in modern awards); or

(b)    Subdivision C (which deals with terms that must be included in modern awards); or

(c)    section 55 (which deals with interaction between the National Employment Standards and a modern award or enterprise agreement); or

(d)    Part 2‑2 (which deals with the National Employment Standards).

Note 1:    Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards.

Note 2:    Part 2‑2 includes a number of provisions permitting inclusion of terms about particular matters.

Terms that must not be included

(2)    A modern award must not include terms that contravene:

(a)    Subdivision D (which deals with terms that must not be included in modern awards); or

(b)    section 55 (which deals with the interaction between the National Employment Standards and a modern award or enterprise agreement).

Note:    The provisions referred to in subsection (2) limit the terms that can be included in modern awards under the provisions referred to in subsection (1).

29    Section 137 provides that a term of a modern award has no effect to the extent that it contravenes s 136.

30    Subdivision D of Div 3, Pt 2-3, Ch 2 of the Fair Work Act is a list of terms that must not be included in modern awards, including s 153:

Terms that are discriminatory

Discriminatory terms must not be included

(1)    A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory

(2)    A term of a modern award does not discriminate against an employee:

(a)    if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

(b)    merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i)    in good faith; and

(ii)    to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3)    A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

(a)    all junior employees, or a class of junior employees; or

(b)    all employees with a disability, or a class of employees with a disability; or

(c)    all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

31    It was not in dispute that the cohort of employees with which the Commission’s review is concerned fall within the definition of “employees with a disability”, set out at [27] above.

32    The four yearly review is being conducted under s 156 of the Fair Work Act. Section 156 was repealed by the Fair Work Amendments (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth), but per cl 26 of Sch 1 to the Fair Work Act, s 156, and Div 4 in which it appeared, continue to apply to “incomplete” reviews. Section 26(1) of Sch 1 provides:

Incomplete review of modern award

Scope

(1)    This clause applies in relation to a review of a modern award conducted as part of a 4 yearly review of modern awards if:

(a)    the review of the modern award commenced before the Schedule 1 commencement day; and

(b)    immediately before that day, the review of the modern award had not been completed.

33    As it thus continues to apply to the current review by the Commission, s 156 provides:

4 yearly reviews of modern awards to be conducted

Timing of 4 yearly reviews

(1)    The FWC must conduct a 4 yearly review of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

Note 1:    The FWC must be constituted by a Full Bench to conduct 4 yearly reviews of modern awards, and to make determinations and modern awards in those reviews (see subsections 616(1), (2) and (3)).

Note 2:    The President may give directions about the conduct of 4 yearly reviews of modern awards (see section 582).

What has to be done in a 4 yearly review?

(2)    In a 4 yearly review of modern awards, the FWC:

(a)    must review all modern awards; and

(b)    may make:

(i)    one or more determinations varying modern awards; and

(ii)    one or more modern awards; and

(iii)    one or more determinations revoking modern awards; and

(c)    must not review, or make a determination to vary, a default fund term of a modern award.

Note 1:    Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 2:    For reviews of default fund terms of modern awards, see Division 4A.

Variation of modern award minimum wages must be justified by work value reasons

(3)    In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.

(4)    Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(a)    the nature of the work;

(b)    the level of skill or responsibility involved in doing the work;

(c)    the conditions under which the work is done.

Each modern award to be reviewed in its own right

(5)    A 4 yearly review of modern awards must be such that each modern award is reviewed in its own right. However, this does not prevent the FWC from reviewing 2 or more modern awards at the same time.

34    These sections, and the Commission’s task on review, must also be viewed in the context of several other key provisions of the Fair Work Act. Section 134 sets out the modern awards objective, and s 284 sets out the minimum wages objective:

134 The modern awards objective

What is the modern awards objective?

(1)    The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a)    relative living standards and the needs of the low paid; and

(b)    the need to encourage collective bargaining; and

(c)    the need to promote social inclusion through increased workforce participation; and

(d)    the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da)    the need to provide additional remuneration for:

(i)    employees working overtime; or

(ii)    employees working unsocial, irregular or unpredictable hours; or

(iii)    employees working on weekends or public holidays; or

(iv)    employees working shifts; and

(e)    the principle of equal remuneration for work of equal or comparable value; and

(f)    the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g)    the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h)    the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2)    The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a)    the FWC’s functions or powers under this Part; and

(b)    the FWC’s functions or powers under Part 2‑6, so far as they relate to modern award minimum wages.

Note:    The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

…

284 The minimum wages objective

What is the minimum wages objective?

(1)    The FWC must establish and maintain a safety net of fair minimum wages, taking into account:

(a)    the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

(b)    promoting social inclusion through increased workforce participation; and

(c)    relative living standards and the needs of the low paid; and

(d)    the principle of equal remuneration for work of equal or comparable value; and

(e)    providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.

When does the minimum wages objective apply?

(2)    The minimum wages objective applies to the performance or exercise of:

(a)    the FWC’s functions or powers under this Part; and

(b)    the FWC’s functions or powers under Part 2‑3, so far as they relate to setting, varying or revoking modern award minimum wages.

Note:    The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134).

Meaning of modern award minimum wages

(3)    Modern award minimum wages are the rates of minimum wages in modern awards, including:

(a)    wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and

(b)    casual loadings; and

(c)    piece rates.

Meaning of setting and varying modern award minimum wages

(4)    Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages.

35    Further, s 150 provides:

150 Objectionable terms

A modern award must not include an objectionable term.

36    The phrase “objectionable term” is defined in s 12 in the following way:

objectionable term means a term that:

(a)    requires, has the effect of requiring, or purports to require or have the effect of requiring; or

(b)    permits, has the effect of permitting, or purports to permit or have the effect of permitting;

either of the following:

(c)    a contravention of Part 3‑1 (which deals with general protections);

(d)    the payment of a bargaining services fee.

37    The applicant also relied on certain provisions in the Disability Discrimination Act 1992 (Cth), principally s 47 which provides:

47 Acts done under statutory authority

(1)    This Part does not render unlawful anything done by a person in direct compliance with:

(b)    an order of a court; or

(c)    an instrument (an industrial instrument) that is:

(i)    a fair work instrument (within the meaning of the Fair Work Act 2009); or

(ii)    a transitional instrument or Division 2B State instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009);

to the extent to which the industrial instrument has specific provisions relating to the payment of rates of salary or wages to persons, in circumstances in which:

(iii)    if the persons were not in receipt of the salary or wages, they would be eligible for a disability support pension; and

(iv)    the salary or wages are determined by reference to the capacity of the person; or

(d)    an order, award or determination of a court or tribunal having power to fix minimum wages, to the extent to which the order, award or determination has specific provisions relating to the payment of rates of salary or wages to persons, in circumstances in which:

(i)    if the persons were not in receipt of the salary or wages, they would be eligible for a disability support pension; and

(ii)    the salary or wages payable to each person are determined by reference to the capacity of that person.

Note:    A person does not comply with an industrial instrument for the purpose of this subsection if that person purports to comply with a provision of that instrument that has no effect. Accordingly, the exemption under this subsection for acting in direct compliance with such an instrument would not apply in such circumstances.

(2)    This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.

(4)    In subsection (1):

disability support pension has the same meaning as in the Social Security Act 1991.

(5)    In subsection (2):

law means:

(a)    a law of the Commonwealth or of a State or Territory; or

(b)    regulations or any other instrument made under such a law.

Note:    See also subsection 98(6B) of the Civil Aviation Act 1988, which allows regulations made under that Act to contain provisions that are inconsistent with this Act if the inconsistency is necessary for the safety of air navigation.

38    Some argument was also directed by the applicant to the role of s 351 of the Fair Work Act, but in the circumstances it is not necessary to set out that provision.

The impugned Decisions

39    For the purposes of these reasons, we have adopted the term “decision” to describe the subject matter of the judicial review application. However the use of that term should not be taken to suggest anything other than the adoption of the description used by the Commission itself. As we explain, we do not consider either of those “decisions” has any legal effect, direct or indirect, of the kind which should sound in relief. Nor does either of those “decisions” affect the legal rights or interests of the applicant (or those employees it contends it represents) in a way which should sound in relief.

40    Those conclusions can be explained both by reference to the circumstances in which orders in the nature of certiorari and mandamus are available, and by reference to the circumstances in which declaratory relief can, and should, be granted: see [137]-[142] below.

The December decision

41    There were a number of applications to vary the Award as part of the four yearly review. As the Commission noted at [18] of its December decision, the “catalyst” for the review was the decision of the Full Court of the Federal Court in Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1. To summarise the outcome in Nojin broadly, a majority of the Full Court found that a wage assessment tool known as BSWAT, indirectly discriminated against employees with an intellectual disability, treating them less favourably in the wage assessment process than those with a physical disability.

42    At [1] of its December decision, the Commission described the “main issue” before it in its four yearly review of the Award as:

the means by which minimum wage rates for disabled employees covered by the SES Award should be determined, and this decision is primarily concerned with determining that issue. The applications also raised some ancillary issues which are described later and dealt with in this decision.

43    The Commission set out the legislative framework applying to the four yearly review process from [2]-[8]. The Commission also noted (at [7]):

The general principles applicable to the conduct of the 4-yearly review established in Federal Court Full Court decisions and decisions of Full Benches of this Commission were summarised in Alpine Resorts Award 2010 as follows:

•    section 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards;

•    “review” has its ordinary and natural meaning of “survey, inspect, re-examine or look back upon”;

•    the discretion in s 156(2)(b)(i) to make determinations varying modern awards in a review is expressed in general, unqualified, terms, but the breadth of the discretion is constrained by other provisions of the FW Act relevant to the conduct of the review;

•    in particular the modern awards objective in s 134 applies to the review;

•    the modern awards objective is very broadly expressed, and is a composite expression which requires that modern awards, together with the NES, provide “a fair and relevant minimum safety net of terms and conditions”, taking into account the matters in ss 134(1)(a)–(h);

•    fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question;

•    the obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process;

•    no particular primacy is attached to any of the s 134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award;

•    it is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award;

•    the s 134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives;

•    in giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s 134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance;

•    what is necessary is for the Commission to review a particular modern award and, by reference to the s 134 considerations and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net;

•    the matters which may be taken into account are not confined to the s 134 considerations;

•    section 138, in requiring that a modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective, emphasises the fact it is the minimum safety net and minimum wages objective to which the modern awards are directed;

•    what is necessary to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence;

•    where an interested party applies for a variation to a modern award as part of the 4 yearly review, the task is not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation meet the objective.

44    At [9]-[10] the Commission set out the relevant clauses of the Award (extracted above at [23]) and described the system of pay grades within the Award. The Award is comprised of grades corresponding to classes of tasks “expressed in broad and generic terms” and minimum hourly and weekly pay rates. The Commission then at [14] set out cl 14.4 of the award and explained that it:

provides for employees with a disability to be paid a percentage of the rates of pay prescribed by clause 14.2 as assessed under an approved wage assessment tool chosen by an ADE.

45    As noted above, cl 14.4(b) sets out an exhaustive list of tools that are an “approved wage assessment tool”. The first of these is the Supported Wage System, and the clause includes 29 others.

46    The Commission noted at [16]:

The evidence before us demonstrated, and it was not in dispute that, with rare exceptions, disabled employees covered by the SES Award are paid a reduced minimum wage as a result of an assessment carried out with the use of a wage assessment tool pursuant to clause 14.4. Consequently, a significant proportion of such employees earn less than $450 per month…

47    The SWS is now (as a result of a variation to the Award) set out in Schedule D of the Award. The Commission set out Schedule D in full at [17].

48    At [28]-[32] the Commission described the claims for variation of the Award that had been lodged, including the claim of the applicant in this proceeding. The applicant sought a variation to the effect that under cl 14.4 the SWS was the only wage assessment tool permitted to be used. Some of the other respondents in this proceeding also sought variations to the Award, and we describe the final implementation of one of those variations below, in contrast to the present situation with the wage assessment tool variations.

49    The Commission then described the hearing process it undertook. On 10 July 2017, the Commission directed that any interested parties file evidence and submissions concerning the proposals to the Award. The matter was listed for hearing before the Commission in February 2018. The Commission described an extensive evidence-gathering process, including conducting inspections of five ADEs and hearing from witnesses who were cross examined at the February hearing. The Commission issued a statement on 16 April 2018 expressing “provisional views”. The Commission extracted the relevant parts of the April 2018 statement at [36]:

[14] During the hearing we conducted inspections of a number of ADEs in Sydney and Wollongong, received witness statements and heard evidence from a large number of witnesses, including expert witnesses, and were assisted by extensive written and oral submissions from the parties. We will in due course, subject to what we state below, issue a full decision stating our findings as to the evidence and our final conclusions as to the matter. However because we do not propose to grant any of the claims relating to wages and wage assessment in the form proposed by the respective claimant organisations but rather consider it likely that it will be necessary to vary the Award in terms not proposed by any party, we consider that the proper course is to state a number of provisional conclusions we have reached and to give the parties an opportunity to consider them, confer and, if necessary, advance further submissions concerning them.

[15] The provisional conclusions we have reached are as follows:

(1)    Supported employment covered by the Award has a valuable and socially significant role in providing employment to primarily intellectually disabled persons for whom, at current or foreseeable levels of government support, the achievement and maintenance of open employment would not be viable. ADEs are able to employ disabled persons by adjusting their daily job tasks to suit their abilities, in circumstances where an equivalent open employment job role may not be able to be completed by a single ADE employee.

(2)    The determination of wages for supported employees by the use of the wage assessment tools currently prescribed in clause 14.4 of the Award does not meet the modern awards objective because:

•    they produce different wage outcomes for persons performing equivalent tasks at equivalent levels of competency;

•    in substance they permit employers to establish their own classification structure and pay rates rather than apply pay rates properly derived from the Award; and

•    may in some cases contravene the Disability Discrimination Act 1992 for reasons similar to those found in the Nojin decision in relation to the BSWAT assessment tool.

(3)    The SWS does not, by itself and in its current form, represent an appropriate method of determining the wage rates for supported employees in ADEs because it:

•    does not take into account the proper range of work value considerations used to assess award wage rates, namely the nature of the work, the level of skill and responsibility involved in doing the work and the conditions under which the work is done (which, in the context of supported employment, would include the complexity of the task(s) performed, the range of tasks performed, and the level of support required in order for the task(s) to be performed);

•    may not adequately measure non-productive time at work on the part of supported employees; and

•    does not provide a sufficiently objective and relevant means of identifying the performance benchmark by which any SWS assessment is conducted.

We emphasise that we express no conclusion about the operation of the SWS in the context of open employment.

(4)    The modified SWS to be introduced into the Award effective from 1 July 2018, by consent and in the context of the current arrangements which allow an employer to choose from a range of wage assessment tools, does not adequately address the second problem identified above, and does not address at all the first and third problems.

(5)    The existing classification structure in Schedule B of the Award, in relation to which the wage assessment tools are intended to operate, is also inadequate and unlikely to meet the modern awards objective. This is principally because it has not been structured with the specific circumstances of supported employment in mind, has not been drafted in a way which clearly identifies the work tasks and skills required of a fully competent employee at each grade, and may on one view be read as entitling supported employees in ADEs who perform only disaggregated parts of a single job to the full classification rate.

(6)     The classification structure proposed by ABI/NSWBC, although we accept it was advanced in a somewhat embryotic form, is not appropriate for adoption or further development because it requires the formation of excessively subjective judgments on the part of the employer in classifying employees and focusses upon the individual characteristics of the employee to be classified rather than the nature and value of the work to be performed and the degree of support required to be provided by the employer.

(7)     We consider that the use of all the existing wage assessment tools should be phased out over a period of time. They should be replaced by a redesigned classification structure for Grades 1-3 of the Award which sets the full award wage rates together with a single prescribed method for the adjustment of the award wage rates for supported employees. This new wage assessment mechanism should meet the objectives of fairness, equality, objectivity, independence and sustainability, and be non-discriminatory.

(8)    The new classification structure should, at each grade, generally describe the range of tasks which a fully competent employee would have the capacity to perform to the reasonable output and quality standard required by the employer in a given industry or occupational area of work. At Grade 2, this would involve a simple and repetitive range of tasks performed under a normal industry-standard level of supervision, and Grade 3 would involve a range of somewhat more complex tasks.

(9)    The new wage assessment mechanism would be a hybrid model involving two elements:

(a)    An assessment of the “size” of the job actually assigned to the supported employee compared to a job which would attract the full Award rate of pay at Grade 1, 2 or 3. This would involve a work value assessment with particular focus on the range of tasks required to be performed compared to the relevant Award classification, the complexity of those tasks and the skills required to perform them, and the degree of support necessary to allow the employee to perform those tasks. This might involve, for example, an actual job assigned to a supported employee being “sized” in increments of 20%, 40%, 60%, 80% and 100% of a job to which an Award classification in Grades 1-3 would apply.

(b)    Once the job was properly “sized”, a modified SWS-type assessment would be carried out to determine the output of the supported employee in discharging that job compared to the output of a person without that employee’s disability performing the same job. This assessment would have to take into account any non-productive periods on the part of the supported employee and provide for an objective and consistent method of benchmark-setting.

The result would be, for example, that if the job was “sized” at 60% of a full Award classification job, and if the supported employee could perform that job at an output level of 50% compared to another person who can perform to the employer’s reasonable expectation of output, the wage rate would be 30% of the Award classification minimum rate of pay. A minimum of 12.5% of the full award hourly rate would continue to apply.

(10)    The interested industry parties and the Commonwealth will be given an opportunity to participate in a conferral process conducted by a member of this Full Bench in order to design a new classification structure and wage assessment mechanism consistent with the above conclusions. This conferral process will include consideration of:

•    the length of the phase-out period for the existing wage assessment tools;

•    the establishment of objective criteria for the “sizing” of jobs performed by supported employees;

•    how the SWS might be modified, or an analogous mechanism established, for the measurement of the output of a supported employee in a particular job; and

•    transitional arrangements concerning existing wage rates and transitional time periods for ADEs with a demonstrated economic incapacity to pay.

(11)    We consider it highly desirable that both elements of the new wage assessment mechanism be supported by the provision by the Commonwealth of trained and independent assessors. We therefore consider that the close involvement of the Commonwealth in the design of the detail of the new wage assessment mechanism would be in the public interest.

(12)    The new wage assessment mechanism should be trialled early in the phase-out period to determine its wage cost impact and to identify any other difficulties before the Commission approves its inclusion in the Award.

(13)    If a broad consensus about the design of the new wage assessment mechanism cannot be reached within a reasonable timeframe, then this will be determined by us.

[16] A report-back hearing concerning the above provisional conclusions will be listed after the parties have had a reasonable opportunity to consider the contents of this Statement. We will state our conclusions concerning the UWU’s claim for increased superannuation contributions and Our Voice Australia’s claim for a “Rights at Work for Supported Employees” clause in our final decision.

(Emphasis added.)

50    The passages in bold indicate, in our opinion, that while the Commission had undertaken a thorough and extensive consideration of the material before it and the options presented to it, and had certainly formed some detailed views of its own, which did not necessarily accord precisely with any of the positions put to it, the Commission was careful to indicate its views were provisional, that it wished to hear further from all interested parties, and that it wished to conduct a trial.

51    Having set out that part of the April 2018 statement, in its December decision the Commission then described how the parties had been unable to reach a consensus about the conferral process it had proposed and accordingly, the Commission did not proceed with such a process. We pause in the chronology at this point to note that the parties’ inability to reach such a consensus illustrates the depth of the divisions between some of the parties, and the somewhat entrenched positions they hold. There is no doubt but that the Commission is acutely conscious of these divisions. That fact is important in characterising what is said by the Commission in its December and March decisions, and in a proper understanding of the process the Commission has yet to undertake.

52    The Commission then described how on 11 September 2018 it issued a further statement setting out the state of affairs as to the conferral process, and making directions for written submissions in response to the April 2018 statement to be filed. A further hearing on these issues was held on 5 and 6 November 2018.

53    At [42]-[43] the Commission described correspondence it received from the Department of Social Services, which advised that a new pricing structure for employment support was scheduled to be announced by the National Disability Insurance Agency in October 2019, under which most ADEs would be financially better off. The Commission extracted its own reply and noted its view that such a change would be a significant development as “the likely cost to ADEs of implementing the SWS as the sole wage assessment tool is an important consideration in the outcome we have determined”. The Commission invited the Department to make further submissions on the matter, and summarised the Department’s submissions from [45]-[50]. A further hearing was held on 23 October 2019 and immediately after the Commission issued directions inviting parties to file written submissions in response to the Department’s submission.

54    At [55]-[120] the Commission set out the parties’ positions and submissions on its provisional proposals, and on the proposals the parties favoured. These included submissions from the parties in this proceeding, and a large number of other parties not joined to this proceeding. The Commission described at length the evidence before the Commission at the hearing at [121]-[245]. The Commission provided a detailed description of the evidence given by each witness.

55    The Commission then set out its present consideration of the issues before it, beginning with a discussion of the history of wage fixation for disabled employees. This included, at [207]-[313], a summary of the decision in Nojin. At [314] the Commission said:

We draw the following broad conclusions from the above analysis of the history of wage fixation for disabled employees:

(1)    Independent reports concerning the appropriate method of wage fixation for disabled persons who would, because of their level of disability, be unable to obtain employment in the labour market at full award rates, have consistently recommended that their wage rate be assessed by use of a hybrid mechanism which takes into account the value of the work they perform and the employee’s level of productivity in performing that work. Views consistent with this approach have been stated in the Ronalds Report, the Dunoon/Green Report, the First KPMG Report, the First HOI Report and the Second HOI Report.

(2)    The SWS was not designed or intended for use in the ADE sector, and its use in that sector has only even been envisaged as being subject to major adaptive change or as one of a number of available wage assessment tools. However, as a measure of productivity simpliciter, it has been recognised (particularly in the Second KPMG Report) as fair and objective.

(3)    The Nojin litigation demonstrates that the work value element of the wage assessment of a disabled employee in an ADE environment should not proceed on the basis of notional core or industry competencies which have no substantive relationship to the classification descriptors for minimum pay rates in the applicable award or to the work actually performed by the employee. An assessment carried out on this basis will be likely to be inherently disadvantageous to and thereby discriminatory towards intellectually disabled employees.

56    In light of these conclusions, the Commission considered (from [315]) the claims of the applicant in this proceeding, and whether the SWS should become the sole wage assessment tool. The Commission described the applicant’s claim as involving two propositions:

(1)    The existence of a multiplicity of wage assessment tools in clause 14.4 of the SES Award does not achieve the modern awards objective in s 134(1) or the minimum wages objective in s 284(1) of the FW Act and, contrary to s 153, is discriminatory in nature or at least permits discrimination to occur.

(2)    The SWS should be the sole wage assessment tool, operating in conjunction with the existing classification structure.

The Commission stated at [316] that it accepted the first proposition but not the second. It stated at [317] that it considered that the following propositions were demonstrated on the evidence and other material before the Commission:

(1)    The existence of a multiplicity of wage assessment tools means that many ADEs are permitted, in practice, to set their own minimum wages for supported employees rather than have them determined objectively pursuant to the provisions of a modern award. In this respect, disabled employees are treated differently to non-disabled employees both within the SES Award itself and more generally.

(2)    The capacity of employers to access differently-constructed wage assessment tools at their discretion also means that disabled employees may be paid differently depending upon which tool is chosen by the employer. This means that disabled employees performing work that is the same or is of the same work value across different enterprises are permitted to be paid different minimum rates of pay. In this respect, they are again treated differently from non-disabled employees under the SES Award, who will always be entitled to the same minimum wage rate for the same work or for work of the same work value, regardless of the employer for whom the work is performed.

(3)    Some of the wage assessment tools listed in clause 14.4(b) of the SES Award may, in their application, result in disabled employees having an entitlement to a minimum wage rate which is less than that applying to a non-disabled employee under the SES Award for the same work or work of the same value.

(4)    Some of the wage assessment tools listed in clause 14.4(b) are constructed in a manner that is similar to the BSWAT and may in their application contravene the Disability Discrimination Act for reasons similar to those found in the Nojin decision.

(5)    The wage assessment tools are generally complex, contained in documents external to the SES Award, and lack transparency and enforceability.

(6)    A number of the wage assessment tools listed in clause 14.4(b) are obsolete.

57    The Commission then illustrated the reasoning for the first five of the points above by “by reference to the Greenacres and Skillsmaster tools, two of the most commonly used tools”. The Commission explained at [319] that the Greenacres tool was specifically developed for people with intellectual disabilities, and provided for 6 wage levels under which the employee is paid a percentage of the Award rate for their position. The Commission set out the wage level structure in a table that showed a percentage of wage ranging from 10% to 55% corresponding to different bands. Employees who are above the 55% wage level are assessed using the SWS. The Commission then explained how different workers are assessed and placed at the different levels, and set out example “task skills”, being lists of minimum capabilities to be assessed as being at each level. The examples included, for the most basic level, expectations such as:

Fine Motor Skills – KC7

•    Basic hand-eye co-ordination, e.g. can hold one item and complete task with remaining hand.

•    Elementary level of dexterity i.e. holds items firmly or gently as required.

•    Placement of items/ objects into bags, containers, boxes, jigs, etc.

•    Basic assembly (with/ without a match to sample item and/ or jig).

58    The Commission explained at [327] that ADEs using the Greenacres tool assign particular jobs to particular wage levels, by reference to the kinds of task skills required for each job. The Commission then set out its analysis of the Greenacres tool (at [328]-[330]):

Although the Greenacres tool nominally operates by reference to SES Award rates of pay, it is in reality a self-contained, autonomous classification system which operates independently of the SES Award. The five-level classification structure, and the process by which jobs are assigned to those classifications by reference to the tasks, skills and underpinning work skills utilised, have no real reference point in the SES Award. For example, the skills required to be classified at Level E of the Greenacres structure, under which employees are entitled to payment at 45-55 percent of the award rate, are in the terms described at least the same as or are in some instances higher than for a Grade 2 employee under the SES Award. The Level E employee, as set out above, is required to check and correct the work of co-workers, but in the SES Award quality control of the work of other employees does not appear as a responsibility until Grade 4. Level 5 employees may be required to “oversee small groups of employees for limited periods”, but the Grade 2 employee under the SES Award has no such responsibility and it is not until Grade 4 or 5 of the SES Award that any element of supervision or responsibility for other employees arises. One of the task skills of a Level E employee is said to be “transporting large volumes of product in a truck (up to 8 tonnes GVM)”, and associated navigation skills are required. Road transport work is not included in the indicative tasks set out in the SES Award classification structure, but under the Road Transport and Distribution Award 2010 such work is performed by a Grade 3 employee, which is roughly equivalent in terms of pay rate to a Grade 4 employee under the SES Award. Assessed as a whole, there is nothing in Level E which discloses any impediment or restriction on the capacity to perform explicit and implicit work skills as compared to a non-disabled employee classified under Grade 2 of the Award, and perhaps also compared to nondisabled employees classified higher than that.

The percentage of the award rates assigned to Level E, and to each of the other wage levels, have been determined externally to the award-making process. These percentages appear to be arbitrary, so that for example it is unclear why a Level E employee (who, as discussed, appears to undertake equal to or exceeding a Grade 2 SES Award employee) is assigned a maximum 55 percent of the award rate, which thus forms the upper limit of the whole structure. On its face, it appears that a disabled employee who would qualify at Grade 2 in the SES Award by reference to the tasks performed by the employee may, by the use of the tool, be paid significantly less than minimum pay rate for Grade 2 (or Grade 1) under the SES Award. By permitting the use of the Greenacres tool, the SES Award in effect authorises the employer to use a method of wage fixation for disabled employees which effectively was designed and established and operates independently to the modern award system and is in some respects inconsistent with it. There is no analogue of this in the modern award system applicable to non-disabled employees.

We emphasise that this conclusion is not intended to be read as a finding that, on the evidence, any disabled employee employed by an ADE using the Greenacres tool has not in actuality been paid a wage rate that is objectively appropriate having regard to the employee’s disability. The evidence before us did not descend to the circumstances of individual employees. Our conclusion is essentially one based upon a conceptual or “desktop” analysis of the Greenacres tool compared to the SES Award.

(Emphasis added.)

59    The Commission completed a similar analysis of the Skillsmaster tool from [331]-[337], coming to the same conclusion at [337], that “the Skillsmaster tool is essentially a self-contained system of wage fixation for disabled employees which only has a nominal reference point in the SES Award”.

60    The Commission also compared the two tools, and noted that while they mirrored each other to a point, there were also aspects of wage calculation on which they radically differed, with the result that

there is no serious likelihood that, if both the Greenacres tool and the Skillsmaster tool were applied to the same disabled employee performing the same job, they would produce the same wage assessment outcome.

61    Pausing again here, as the applicant contended in substance before this Court, it is possible to describe what is said by the Commission in passages such as those just extracted as “findings”. Indeed the Commission itself used that term in the extracts above. The Commission is certainly explaining, by way of references to evidence and arguments, why it does not agree with the position put to it by various parties, and why it found some of the other wage assessment tools were likely to be incompatible with work values and do not meet modern award objectives.

62    At [342]-[343] of the December decision, the Commission found that:

For these reasons, we do not consider that clause 14.4, insofar as it represents the means by which the SES Award sets minimum wages for disabled employees, meets the modern awards objective in s 134(1) by providing a fair and relevant safety net of terms and conditions. In this connection we have had particular regard to paragraphs (a), (e) and (g). In respect of paragraph (a), disabled employees to whom clause 14.4 applies are the lowest paid persons within the entire modern award system, and while there are as earlier discussed important social and economic policy reasons for this, it is essential that the award system regulates them fairly, equitably, consistently and in a non-discriminatory, transparent and enforceable way. The current system does not do this. Paragraph (e) of s 134(1) is concerned with equal remuneration for men and women workers, as the definition of that expression in s 302(2) makes clear. As we have demonstrated, the use of the different wage assessment tools authorised by clause 14.4(b) of the SES Award results in a situation whereby an employee of one gender performing work at a particular ADE using a particular authorised tool will not be entitled to the same rate of pay as an employee of another gender performing the same work, or work of equal or comparable value, at a different ADE using a different authorised tool. As to paragraph (g), the current system is as we have stated complex and lacking in transparency and is not “simple [or] easy to understand”.

For similar reasons we do not consider that clause 14 of the SES Award meets the minimum wages objective in s 284(1). Paragraphs (a)-(d) of s 284(1) are repetitive of considerations in s 134(1), and our conclusions in respect of them are relevantly the same. In respect of paragraph (e), we do not consider that clause 14 provides for minimum wages for employees with a disability that are “fair”, because as explained they result in outcomes which do not provide consistent minimum wage outcomes for work of equal or comparable value and treat disabled employees differently to non-disabled employees.

(Emphasis added.)

63    These statements formed an important part of the applicant’s submissions in this proceeding. To this point, we apprehend the applicant in substance agreed with the positon taken by the Commission – that is, that the suite of wage assessment tools should not be retained because some of them were likely to produce wage outcomes which were not compatible with the modern award objectives (and other core aspects of the Fair Work Act).

64    It is the next part of the Commissions’ reasoning that is challenged in a substantive way by the applicant, as this is where the Commission rejects the position put to it by the applicant. At [344] the Commission stated that it did not consider that varying the award such that the SWS was the only wage assessment tool would be “the solution to the problem we have identified with cl 14.4 or would meet the modern awards objective”.

65    The Commission then described the SWS, its benefits and what it perceived to be defects in its methodology. At [364] the Commission concluded:

Our conclusion, based on the above analysis, is that the adoption of the SWS as the single mandatory wage assessment tool within the current wage structure of the SES Award as proposed by the AEDLC would not achieve the modern awards objective of a fair and relevant minimum safety net of terms and conditions. In this respect we have paid particular regard to paragraphs (a), (c) and (f) of s 134(1) as being of relevance and weight. In relation to paragraph (a), the adoption of the AEDLC proposal would likely have the effect of increasing the wages paid to many supported employees, although the financial benefit of this would be diminished by a reduction in their DSP payments. In respect of paragraphs (c) and (f), the mandatory adoption of the SWS as proposed would lead to a very large increase in the employment costs, which would result in a significant loss of jobs for disabled person in ADEs and thus would diminish rather than promote the social inclusion of disabled person by reducing their level of workforce participation. With respect to the minimum wages objective, we have taken into account the considerations in paragraphs (a)-(d) of s 284(2) in the same way as the equivalent considerations in s 134(1). In respect of the paragraph (e), we do not consider that that the adoption of the SWS in its current form as the sole determinant of wages for disabled persons in ADEs would be “fair” to either ADEs and employees or disabled employee for the reasons we have earlier given.

66    From [365]-[366] the Commission considered the claim of another party not relevant to this proceeding.

67    At [367], the Commission asked itself what, in the circumstances of its findings, was “the way forward”. That the Commission posed that question for itself is not unimportant to the question of how its December and March decisions should be characterised. In our opinion, the Commission was describing the continuation of an iterative process between itself and the interested parties, a component of which – an important component– was the expression of the provisional views it had reached on the material before it to this point.

68    The Commission then set out what it described as its “preferred approach”. That is (at [371]-[375]):

We have concluded that the issue of the work value of jobs that are created or tailored for the purpose of providing work which is within the capabilities of disabled person should be dealt with by the more direct, simple and traditional means of establishing new award classifications and pay rates applicable to such jobs. That will necessarily mean that there will be classifications in the SES Award will provide for rates of pay that are below the National Minimum Wage. There is nothing in the FW Act which requires that minimum pay rates in an award be at or above the level of the National Minimum Wage, and the current position is that the SES Award expressly provides for the payment of wage rates below the National Minimum Wage. No party contended for any change this position, and the claims of the AEDLC and ABI were advanced on the basis that disabled employees would under their proposals be paid amounts below the National Minimum Wage. We are of course proceeding on the basis that the affected employees are in receipt of the DSP, and this will operate in conjunction with the prescribed pay rate to ensure that the employee receives a total income that it socially acceptable in contemporary circumstances.

We consider that:

(1)    There should be two new classifications (Grades A and B) below the current Grade 1 in the SES Award. The classifications should be applicable only where the employer has created a position consisting of tasks and a level of supervision that has been tailored or adjusted to meet the circumstances of the employee’s disability and which does not fall into Grades 1-7 of the classification structure. We emphasise here that we are not talking about the situation where an employer simply makes a reasonable adjustment to allow a disabled person to perform a pre-existing vacant position. Additionally, the employee must meet the criteria for eligibility to receive the DSP.

(2)    Grade A shall provisionally have a rate of $7.00 per hour, and shall apply to employees who perform one or more simple tasks consisting of up to three sequential actions under direct supervision and constant monitoring.

(3)    Grade B shall provisionally have a rate of $14.00 per hour, and shall apply to employees who perform one or more simple tasks consisting of more than three sequential actions, which may involve the use of mechanical or electrical equipment or tools, under direct supervision with regular monitoring.

The classification descriptors for the existing Grades 1-7 will be modified so that they are expressed in terms of generic indicators of work value. We consider that the current lists of indicative tasks should be removed to make it clear that the mere performance of one of those tasks in circumstances in relation to job which has been established or tailored to align with a disabled employee’s level of capacity is not sufficient or intended to fall within any of these grades. Instead, alignments with other award classifications which provide for the performance of work commonly performed in the ADE sector will be included to provide proper guidance as to the work intended to be comprehended at each classification level. Grades A-B and 1-7 will, taken together, provide a classification structure which accommodates in a comprehensive way the jobs which the evidence shows actually exist in the ADE sector and properly reflects their work value.

We consider that disabled employees classified in any grade (Grades A and B or 1-7) may be paid a percentage of the specified rate for the classification based upon an assessment of their productivity as compared to that of a relevantly non-disabled person. The only wage assessment tool which may be used for that purpose will be the SWS, subject to the following modifications:

(1)    Where an employee performs more than one major task in their job, the SWS assessment must measure a representative sample of the tasks performed and weight them appropriately.

(2)    The SWS assessor must independently determine that benchmark to be used for the assessment is valid and appropriate.

(3)    Where an employer collects workplace data as to the employee’s productivity levels, that data must be assigned a 50% weighting in the overall assessment, regardless of the degree of disparity with the result of the SWS assessor’s assessment.

(4)    There will be an absolute minimum payment of $3.50 per hour. This amount will also serve as the minimum rate payable to a disabled employee during an initial assessment period in their employment.

Finally, we consider that no existing ADE employee should suffer a reduction in remuneration as a result of the introduction of the new wages structure which we propose.

69    The determination that the Commission considered could implement this view was included at Attachment A to the December decision.

70    On any view, this is a detailed and comprehensive proposal. It is the product of a comprehensive and carefully reasoned explanation of why, at December 2019, the Commission’s view was that this was the appropriate way forward in its four yearly review of the Award. The applicant’s position before us required the Court to assume, or find, that the Commission was immovable on this proposal, aside from the dollar amounts it proposed for Grades A and B. For reasons we explain below, there is no basis to make such an assumption, and it would be inappropriate for this Court to do so.

71    The Commission then noted (at [378]) further steps that it found were necessary to take before any determination varying the Award would be made. The whole of [378] and [379] should be set out:

It will be necessary to undertake a number of steps before any determination arising from this decision takes effect. Firstly, we wish to give parties an opportunity to make further submissions about the determination which we presently consider should be made. We would particularly be assisted if such submissions addressed the proposed rates of pay and classification descriptors for the new Grades A and B, the new classification descriptors for Grades 1-7 and the implementation timetable (see below), as well as any other issues the parties consider relevant. We would also be assisted if the Commonwealth could advise as to its preparedness to provide the financial support which we have identified as being necessary. Secondly, we propose then to conduct a conference of those parties who are interested in endeavouring to achieve a consensus position as to the terms of the award variations to give effect to this decision, having regard to the draft determination in Attachment A. With the benefit of the submissions and the conference process, we will then be in a position to finalise the new wages structure which is to be the subject of the trial.

We consider that the trial should be conducted over a period of three months, subject to any submissions on this issue which might be received. Once the trial is completed, the results should be made public, and interested parties will then be given an opportunity to make further submissions. We will then issue a final determination varying the SES Award. The results of the trial in terms of any changes to overall labour costs will be taken into account by us in setting the final wage rates for the new Grades A and B. We consider that the determination should not take effect until a further 14 months have passed, in order that ADEs have a proper opportunity to phase out the use of the existing wage assessment tools and transition to the new wages structure.

72    From [380], the Commission then set out procedural details and a timetable for how it considered preparation for the trial and the trial itself should be run. The timetable also included an opportunity for further evidence to be filed, for further submissions and for a further hearing. The Commission envisaged in this timetable that a final determination would be made around 30 October 2020 (that is, approximately ten months after its December decision). The timetable also provided for the operative date of the determination to be postponed until 1 January 2022. We return to this feature of the Commission’s timetable below.

73    The Commission finally went on to set out its views on other claims not relevant to the proceeding in this Court.

The March decision

74    The timetable envisaged by the Commission did not eventuate. A statement in January 2020 by the Commission proposed revisions to the timetable. This statement referred to the convening of a working group, which subsequently became known as the trial steering committee. The applicant and all the respondent parties were represented on this Committee. Ms Wilson represented the applicant but she resigned from the committee in October 2020. Since that date the applicant has, it would seem, elected not to be represented on that committee.

75    Also after the December decision, submissions were indeed filed by the parties. They included submissions filed by the applicant in this proceeding expressing its opposition to the variations to the Award proposed in the December decision. Those submissions are before the Court as an annexure to the affidavit of Ms Wilson. They incorporated, by reference, several sets of earlier written submissions put to the Commission by the applicant. It is in our opinion fair to say that the applicant has put, and has been allowed and encouraged to put, fulsome written submissions to the Commission on multiple occasions. It is apparent from a perusal of those submissions that some, but not all and perhaps not even most, of the matters put to this Court as legal impediments to the approach the Commission was considering taking were put to the Commission by the applicant in those submissions.

76    Various other steps were taken in February 2020, in order to try to achieve the consensus approach to which the Commission had referred in its December decision. That did not occur. Accordingly, on 30 March 2020, the Commission issued the March decision. This decision dealt with two issues raised by the ACTU and some of the ADE employers. It also dealt with another set of submissions filed by the applicant, on 17 March 2020.

77    In relation to the applicant’s submissions raising what Ms Wilson describes in her affidavit (at [103]) as “a number of jurisdictional and merit based arguments”, the Commission stated (at [3]):

The premise of that submission is that the SES Award is to be varied to give effect to the new classification structure prior to the commencement of the trial. In that respect, at least, the submission is entirely misconceived. The purpose of the trial is to assist the Commission in determining whether the SES Award should be varied to include the wages structure we indicated we preferred in the principal decision. Participation in the trial is voluntary, and it is not necessary that the SES Award be varied in order to conduct it. As the timetable set out in paragraph [380] of the principal decision … was intended to make clear, we do not anticipate making any final variation to the wages structure in the SES Award until after the results of the trial are known and interested parties have been afforded a further opportunity to adduce further evidence and make further submissions. … Accordingly, the matters raised in the AED Legal Centre’s submission do not require consideration at this time.

78    This paragraph of the March decision is important. As we explain below, it illustrates at least three matters. First, that the Commission is fully conscious of the applicant’s continuing opposition to its proposal, including opposition based on what both the applicant and the Commission have described as “jurisdictional” grounds. Second, that the Commission will give consideration to the arguments put by the applicant on these matters, at a time closer to the time at which the Commission is deciding whether and how to exercise the variation powers conferred on it by the Fair Work Act. Third, and correctly, that the Commission understands it has not yet reached that point in its task.

Federal Court Application

79    On 22 May 2020, the applicant filed a judicial review application pursuant to s 39B of the Judiciary Act. The applicant contends that the Commission’s decisions of December 2019 and March 2020 are affected by jurisdictional error because it:

(1)    misconstrued ss 136 and 153 of the Fair Work Act; and

(2)    denied the applicant natural justice and acted contrary to s 577 of the Fair Work Act.

80    The relief sought by the applicant was expressed in the following terms:

1.    A writ of certiorari removing proceedings AM2014/286 in the Fair Work Commission into the Federal Court of Australia for the purpose of quashing the Eighth Respondent’s decision dated 3 December 2019 ([2019] FWCFB 8179) and its decision dated 30 March 2020 ([2020] FWCFB 1704).

2.    A writ of mandamus directing the Eighth Respondent to hear and determine the review proceedings AM2014/286 in the Fair Work Commission according to law.

3.    Further or alternatively, declarations that:

(a)    The classification terms referred to as grades A and B in clauses 14.2, B.1.1, B.2 and B.3 of attachment A to the Eighth Respondent’s decision dated 3 December 2019 ([2019] FWCFB 8179) and in clauses B.1.1, B.2 and B.3 of its decision dated 30 March 2020 [2020] FWCFB 1704 (the Terms) discriminate against employees because of, or for reasons that include, physical or mental disability and accordingly engage the prohibition in section 153(1) of the Fair Work Act 2009.

(b)    In purported performance of its modern award functions, or purported exercise of its 4 Yearly modern award review powers, in review proceedings AM2014/286, the Eighth Respondent failed to comply with the requirements of natural justice, contrary to law, by failing to consider and respond to arguments put to it by the Applicant in respect of the Terms.

(c)    In purported performance of its modern award functions, or purported exercise of its 4 Yearly modern award review powers, in review proceedings AM2014/286, the Eighth Respondent:

(i)    purported to perform those functions, or exercise those powers, in a manner that failed to comply with section 577(a) and (c) of the Fair Work Act 2009; and/or

(ii)    failed to observe the requirements of natural justice, contrary to law.

4.    Further or alternatively, an injunction restraining the Eighth Respondent from giving effect, or further effect, to its decision dated 3 December 2019 [2019] FWCFB 8179 and its decision dated 30 March 2020 [2020] FWCFB 1704 by conducting a trial of, or including in the Supported Employment Services Award 2010, the Terms.

81    On the second day of the hearing, the applicant filed and served a proposed amended originating application. The applicant sought to add the following form of declaratory relief, in the alternative to the other forms in the original application:

Further or alternatively, declarations that, on their proper construction, sections 136, 153(1), and 153(3)(b) of the Fair Work Act 2009 (Cth) do not permit the inclusion in a modern award (relevantly, here, the Supported Employment Services Award 2010) of terms that set minimum wages for employees with a disability, or a class of employees with a disability:

(a)    otherwise than by reference to the productive capacity of the employees;

(b)    in a way that creates new “Grades” attracting wages that are lower than the lowest wages in other modern awards, so as to result in inconsistency of employee treatment across awards;

(c)    including on the basis of having taken into account other sources of income that the employees have or may have;

(d)    including on the basis of having taken into account the economic viability of particular employers (relevantly, here, Australian Disability Enterprises), or the types of commercial activities in which those employers engage.

82    The Court indicated to the applicant that it would hear how the application for leave to amend the originating application was developed. Senior counsel made oral submissions in support of that application.

83    He submitted the amendment overcame an argument raised against the applicant by the second to fourth respondents, to the effect that the judicial review proceedings were premature. He submitted the “key vice” in the December decision was at [377]. There the applicant contended the Commission set out what it is “going to do”, because it has formed the view that it can do what it proposes, contrary to the applicant’s contention that it does not have jurisdiction to do what it proposes to do. Senior counsel submitted that while the present declaratory relief engaged with the classification terms, the proposed amendment more squarely addresses the question of jurisdiction of the Commission, the Commission having made its views “very clear” in the December decision in particular.

84    Senior counsel submitted the Commission had in essence asked itself:

“If these terms were included, would they infringe the prohibitions in subdivision (d) of the Act?”

85    He accepted there was a hypothetical aspect to this description of the Commission’s approach but contended in substance the Commission asked itself the question “Can we do this?” and answered that question “Yes. We can”.

86    The Court indicated it would consider the application to amend over the luncheon adjournment on the second day. Having done so, the Court indicated it had the opportunity to discuss the matters raised, and to reflect on them. It indicated it did not need to call on the respondents and refused the application to amend the originating application.

87    The proposed amendment certainly expressed in more detail some of the bases articulated in the applicant’s submissions for the contention that the Commission had exceeded its jurisdiction, or proposed to exceed its jurisdiction, by making a variation to the Award in the terms set out in Attachment A to the December decision. It also picked up at least one matter raised during the oral hearing in discussion between the bench and the parties. However, the focus on a different articulation of the alleged jurisdictional error does not alter or affect the basic flaw in the judicial review application, which is that it seeks to challenge an exercise of power which has not yet occurred, and to do so on the basis of reasoning which the Commission itself has described as provisional, and which is part of an iterative and ongoing process that has not yet reached its conclusion.

The evidence relied on

88    As noted above, the applicant relied on an affidavit of Ms Kairstien Wilson, sworn 22 May 2020.

89    On 27 January 2021, the second, third and fourth respondents filed an affidavit of Mr Chris Christodoulou, affirmed on 27 January 2021. Mr Christodoulou is the CEO of the fourth respondent. On 16 February 2021, the day before the hearing commenced, those respondents sought orders that leave for the affidavit to be filed be granted. With those proposed orders, the Court was provided with correspondence directed to the chambers of Kerr J, noting that the second to fourth respondents sought to read and rely on Mr Christodoulou’s affidavit. The correspondence also stated that, having engaged in discussions with the applicant with respect to its objections, the respondent did not seek to read and rely on the first sentence of [10], the last sentence of [13], [24] and [43]-[44]. The applicant pressed its objection to paragraph [42].

90    Kerr J made an order also on 16 February 2021 that leave be granted to file the affidavit.

91    Paragraph [42] is a statement that Mr Christodoulou was present during discussions of the steering committee where certain matters as to the conduct of the proposed trial were agreed. In oral submissions, senior counsel for the second to fourth respondents confirmed that they did not seek to read the paragraphs identified above. Mr Hartley for the applicant made submissions in objection to [42] on the bases of relevance and that it is inadmissible under s 76 of the Evidence Act 1995 (Cth) because it contains opinion evidence.

92    Mr Hartley submitted that the paragraph should be excluded on the grounds of relevance because it pertained to the post-decision conduct or views of people other than the Commission, and so could not be relevant to the what Commission intended by its exercise of power in the December decision. He further submitted that the paragraph goes to whether an agreement had been reached, which, relying on the decision in Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, he argued was properly characterised as impermissible opinion evidence.

93    In response, Ms Bulut for the second to fourth respondents submitted that the paragraph is relevant because it goes to the conduct of the proposed trial, and whether that trial “will actually have a discernible or apparent legal effect upon rights”. She further submitted that, as a member of the committee, Mr Christodoulou’s record of the outcome of those meetings is comparable to the minutes of a meeting, and should not be considered opinion evidence.

94    The applicant’s objection should be rejected. We accept the submissions of Ms Bulut. The paragraph is both relevant and admissible.

The parties’ submissions in summary

95    Given the conclusion we have reached on the outcome of the judicial review application, this summary of the parties’ submissions on the substance of the alleged errors can be brief.

The applicant’s submissions

96    The applicant’s reply submissions provided a useful summary of the applicant’s contentions:

First, if, as the Applicant contends, the FWC misconstrued ss 136 and 153 of the FW Act, that would give rise to material jurisdictional error (AS [17]–[18]).

Second, despite that the Award has not yet been varied, certiorari is available because the December and March Decisions have legal consequences that may be quashed (AS [20]–[24]).

Third, alternatively, declaratory and injunctive relief are available (AS [25]).

Fourth, section 153(3)(b) is to be construed as permitting discrimination based only on productive capacity, whereas the FWC’s preferred approach discriminates based on other matters (AS [33]–[34], [36]–[37]).

Fifth, further or alternatively, the preferred approach does not set a “minimum wage” within the meaning of s 153(3)(b) (AS [38]).

Sixth, if the preferred approach does set a minimum wage, it does not do so based on “work value reasons,” inconsistently with the stricture in ss 156(3)–(4) (AS [39]–[40]).

Seventh, if the preferred approach does set a minimum wage based on work value reasons, it does not do so for a “class of employees with a disability,” within the meaning of s 153(3)(b) (AS [41]-[42]).

Eighth, by failing to consider particular submissions and evidence, the FWC failed to afford the Applicant natural justice (AS [43]–[47]).

97    The applicant submits, firstly, that the Commission’s finding that the preferred approach “would not involve any contravention of s 153(1) having regard to s 153(3)(b)” constitutes a reviewable decision, because (citing Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 at 162-164):

The FWC’s finding that s 153(1) does not preclude the “preferred approach” is capable of affecting rights or giving rise to legal consequences. It forms the basis for inclusion of terms that, in the Applicant’s submission, are barred. These effects are capable of being quashed.

Further, the trial of the “preferred approach”, given its purpose, prima facie requires that pay be determined according to a grade that is not a “relevant grade” and by a method that is not an “approved wage assessment tool” prescribed by cl 14.4 of the Award. This directly affects existing rights. Additionally, it is open to characterise the decision to progress the “preferred approach” by way of a trial as a decision as to how the review matter is to be dealt with (s 589(1) of the FW Act). This too is a decision capable of being quashed for jurisdictional error.

(Footnotes omitted.)

98    Alternatively, the applicant submits that declaratory relief and injunctive relief in the nature of prohibition are available on “a stand-alone basis”.

99    In reply, the applicant emphasised that the decision it contends is a final decision affecting rights and interests is the finding by the Commission that it “has the authority to implement the ‘preferred approach’”. The applicant submits that, on its construction, the trial would be “of an approach that would be beyond the Commission’s power to insert into the Award … and would therefore be inutile”. It is for that reason that the applicant contends it is appropriate, and permissible, for the Court to issue declaratory relief at this stage.

The grounds of review

100    The applicant also made submissions as to each of its grounds of review. Aside from its natural justice argument, they need not be set out in the circumstances.

101    In its written submissions, the applicant contended it made various submissions to the Commission, broadly reflecting the submissions made in this proceeding, in relation to both the December and March decisions. The applicant contends that its submissions were not adequately addressed in the December or March decisions. The applicant submits that this entails a failure to properly consider the applicant’s submissions, amounting to a failure of procedural fairness and a failure to comply with s 577 of the Fair Work Act.

102    The applicant contends that the failure is material in the sense that had the applicant’s submission to the Commission been accepted, the Commission “might or would have” been required to make a different decision.

Sixth and seventh respondents’ submissions

103    The sixth and seventh respondents are the Health Services Union and Australian Council of Trade Unions respectively. They agreed with and adopted the written submissions of the applicant. They focus on the sixth proposition in the applicant’s reply submissions: see [97] above.

104    The sixth and seventh respondents also made submissions as to why the “preferred approach” was in not consistent with the Fair Work Act.

The Commonwealth’s submissions

105    The Commonwealth made submissions as to the proper construction of s 153 of the Fair Work Act, but did not take a position as to the merits of the application. Nor did it take a position on the contention that the judicial review application was premature.

Second, third and fourth respondents’ submissions

106    The second, third and fourth respondent are Australian Business Industrial, National Disability Services, and Greenacres Disability Services respectively. Each is a body corporate that made submissions in the Commission’s review process.

Availability of relief

107    It was the second, third and fourth respondents, supported by the fifth respondent, which contended that as no determination has been made, there is nothing to quash and no basis to grant certiorari. The Commission’s “decisions” to this point have had no effect on legal rights, and therefore no declaratory relief should be granted. They submitted there has been no denial of natural justice to the applicant, as it was given (and will be given in the future) reasonable opportunities to be heard before the Commission before a final determination is made. They relied on the Commission’s own conclusion that the time had not yet come to grapple with the jurisdictional arguments put by the applicant to the Commission.

108    Relying in particular on [2] and [4] of the March decision, the respondents submitted the Commission “made it plain” in these paragraphs that it was “not stating any final view” or “varying the SES Award at this time”. The respondents submit that the applicant’s submissions do not grapple with the absence of any variation that impacts on legal rights, or these statements by the Commission. They appear to contend that the exercise of power is located in s 156 and it has not yet been exercised. The Commission had communicated effectively that there would be a trial, which would be voluntary, and was intended to inform the Commission and other parties before the Commission decides whether (and how) to vary the Award. No rights are affected by the holding of the trial, and there is presently no controversy that needs to be quelled.

109    Relying on the decision of the majority in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-582, the respondents contend the applicant seeks relief on a question which is “purely hypothetical” and relates to “circumstances that [have] not occurred and might never happen”.

Fifth respondent’s submissions

110    Our Voice Australia agreed with and adopted the written submissions of the second, third and fourth respondents, and made some additional submissions based on the experiences of its members with family members employed in the ADE sector. In her oral address to the Court, Ms Walsh emphasised that the Commission’s process had once been described by lawyers involved as “argy bargy”. She emphasized to the Court that this “argy bargy” was about the lives of those parents, family members and carers who make up One Voice, and about the “lived examples” of the debate about what wage structure should be implemented for employees with a disability who work in ADEs. Her observations have, with respect, force, and they underline why the Commission, in the circumstances, must be permitted to complete its statutory task.

Resolution

111    It is instructive to focus on the relief sought by the applicant. What the applicant seeks to have quashed (and in respect of which the other relief is sought) are

the Eighth Respondent’s decision dated 3 December 2019 ([2019] FWCFB 8179) and its decision dated 30 March 2020 ([2020] FWCFB 1704[.]

112    What were the “decisions” made by the Commission on each of those occasions? As we have explained, although the Commission itself used the language of “decision”, it is apparent that each of them was but a step along the way to the Commission forming its ultimate view about what the appropriate terms of the Award should be. It can be accepted that the December decision in particular represented a detailed and carefully reasoned explanation of the Commission’s view about the appropriate wage structure, and the method to be used. However, as we explain, the language used indicates that view, while carefully formed, is not final. Aside from the trial which is yet to be conducted, the Commission also made it clear in its March decision that it understood it needed to consider, at an appropriate time, matters such as the applicant’s “jurisdictional” objections. Its reasons made it clear it was deferring consideration of those matters, not refusing to consider them.

113    Aside from the passages to which we have expressly referred, the key parts of the December and March decisions which indicate the provisional nature of the Commission’s process are as follows.

114    The Commission called what is encompassed in Attachment A to its December decision its “preferred approach” (see the heading before [367]). It used that descriptor, and then explained why it considered the approach it described should be preferred, after a detailed and thorough consideration of other alternative models, including those proposed by the applicant. In [367] the Commission was clear to locate its preferred approach in a context of its current view that there was a need to continue viable and sustainable ADEs, and “security and confidence to employees, parents and carers for the future”. While the applicant might not agree with the Commission’s emphasis at this point, the Commission was appropriately disclosing to all parties the factors to which it was giving weight at this stage of the review process.

115    At [369], it explained why it had not accepted the position proposed by the applicant, and it did so both before and after this paragraph by reference to matters set out in a statement in April 2018. The Commission stated:

We also confirm that there should be a new hybrid wages structure for disabled employees which takes into account the value of the work they perform and their productivity level where this is affected by their disability. In the context of our consideration of the AEDLC claim and our analysis of the SWS, we have set out the reasons for our conclusion that a purely productivity-based assessment would not be fair or appropriate or achieve the modern awards objective and that it is necessary to take into account the work value of the employee’s job. This is an approach which has conceptually been endorsed by every independent review of wage fixation for disabled persons, as we have earlier recounted.

116    Then, at [370], the Commissions referred to views it had expressed in the April 2018 statement about the appropriateness of assessing the “size” of the job being performed by a disabled employee “as compared to a job that would attract the full award rate of pay”. It then made this statement:

However, after further consideration and having regard to the parties’ further submissions, we have decided not to proceed with this concept.

117    The Commission continued in [370] to explain why it had changed its mind, and to set out the method it then considered was a better one. We consider this is an important demonstration of the Commission’s approach. Its approach is iterative, consultative, and reflective. It has changed its mind, and it may well do so again. That is why the description “provisional” is apt to describe its December and March decisions.

118    The applicant identifies in particular the last sentence of [377] of the December decision. Paragraph [377] states:

The determination we are currently minded to make, which incorporates replacements to clauses 13 and 14 and Schedules B and D of the SES Award, is contained in Attachment A to this decision. Our conclusion at this stage, subject to what follows immediately below, is that these variations would serve to ensure that the SES Award meets the modern awards objective in s 134(1) of a fair and relevant safety net. Of particular weight and relevance are paragraphs (a), (c), (f) and (g) of s 134(1). In respect of paragraph (a), we consider that the proposed variations would at least protect and may in some cases enhance the current needs of the low paid supported employees covered by this award. As to paragraphs (c) and (f), we consider that the proposed wage structure would not have a significant impact on employment costs, would ease the regulatory burden for many ADEs (by externalising much of the cost of the wage assessment process to the Commonwealth’s SWS assessors), and would tend to promote social inclusion by giving ADEs the confidence to continue to employ disabled persons and thus increase workforce participation. As to paragraph (g), we consider that the variations would make the SES Award simpler and easier to understand and place it on a stable and sustainable footing. The balance of the considerations in s 134(1) we consider to be neutral. We also consider that the proposed variations would meet the minimum awards variation in s 284(1). In that respect, we take into account paragraphs (a)-(d) of s 284(1) in the same way as we have the equivalent considerations in s 134(1). We have given particular weight to paragraph (e) of s 284(1), since for the reasons we have explained we consider that the proposed variations constitute what is necessary to achieve a comprehensive range of fair minimum wages to employees with a disability. We are also satisfied that the variations would not involve any contravention of s 153(1), having regard to s 153(3)(b).

119    This indicates, the applicant submits, that the Commission has determined the pay structure, and the trial only concerns how to confirm the correct rates of pay for Grade A and Grade B, not the methodological approach. The last sentence is said to reveal just how final the Commission’s view really is. We do not accept that submission. The paragraph must be read as a whole, and in the context of the whole decision. Read that way, it is clear the Commission has a carefully reasoned view about what, as at December 2019 (and probably also at March 2020) it considered may be or is likely to be an appropriate wage structure. In this paragraph it used language such as “[t]he determination we are currently minded to make”. That language is familiar to judicial and non-judicial decision makers. It indicates a provisional view, a mind still open to persuasion. It is often used, as it was by the Commission, where it is necessary to put parties or participants on notice of the way the decision maker is inclining. In a review as long and complex as this one, it would have been an abdication of its responsibilities if the Commission had not set out a “preferred” approach in some detail, and if it had not explained why it preferred the method set out.

120    Further, as senior counsel for the second to fourth respondents submitted, how these proposed Grades A and B might in fact work in individual ADEs, and how they might interact with Classifications 1-7 are matters which remain speculative and hypothetical. As senior counsel submitted, the way to see if they do indeed produce discriminatory effects, or have a character which takes them outside the “work value” justification in s 156(4), is to conduct the trial and then review and reflect on the results. That is what the Commission proposes to do.

121    The setting out of a timetable for future steps, in [380] of its decision, is a clear indication of the absence of any finally formed views on the part of the Commission. There is no basis for this Court to take what has been said by the Commission, understood in its context, as indicating it has closed its mind to any or all aspects of what the final determination of a wages structure will be. The applicant’s submissions invited the Court to take such an approach, and it should be rejected.

122    As we have noted, in its March decision at [3], the Commission made it clear that the time had not been reached where it was appropriate to consider the applicant’s “jurisdictional” arguments. It was correct. The applicant’s statutory construction arguments, which may or may not ultimately lead to asserted jurisdictional error, can and should only be made once the Commission has decided, in a final way and after the trial and the further iterative steps it proposes, what the variation of the Award should actually be. At that point, it may well be appropriate to consider whether the variation it has settled on is consistent with the Fair Work Act, and within its jurisdiction to make. The Commission has indicated the applicant can be heard on these matters. They are some time away. Not only does the trial have to be completed and analysed, but the Commission has foreshadowed further submissions and hearing processes. It has also foreshadowed a period of 14 months before any determination comes into effect.

123    Paragraphs [4] and [5] of the March decision should also be set out:

In respect of the issues requiring provisional determination for the purpose of the conduct of the trial, the parties have engaged in further discussions and have advanced further submissions and proposals, but no consent position has been reached. Accordingly, this decision will set out our conclusions as to the contested issues for the purpose of the trial only. Attached to this decision is a modified version of the proposed classification structure which, we consider, adequately addresses the issues raised by the parties. That will constitute the basis upon which the trial will proceed.

We note that ABI proposed that additional classification from the General Retail Industry Award 2010, the Restaurant Industry Award 2010, the Hospitality Industry (General) Award 2010, the Fast Food Industry Award 2010 and the Clerks – Private Sector Award 2010 be incorporated into the new wages structure. We are not presently persuaded that we should do this for the purposes of the trial. With at least some of these awards, ABI’s proposal does not properly align the incorporated classifications with the pay grades in the SES Award, and the work of these classifications does not appear to us to be a significant feature of the work of ADEs (except perhaps for clerical classifications). This issue may be revisited at a later stage of the proceedings after the trial has been completed.

(Emphasis added.)

124    It not possible sensibly to read these passages as anything other than demonstrating the Commission remains within a process that has not completed, and may change its mind, or change its approach, on any number of issues.

125    Outside the two impugned decisions themselves there are other statements and determinations made by the Commission as part of its four yearly review of the Award which confirm that the correct characterisation of the December and March decisions is as steps – albeit significant steps – in a process which is incomplete, has no legal consequences and has no effect on the rights and interests of any of the participants or affected employees.

126    For example, the statement issued by the Commission on 21 January 2020, to which the Commission referred at [1] of its March 2020 decision is important. At [1] and [2] of that statement, the Commission stated:

On 3 December 2019 we published a decision in this matter (December decision) in which, among other things, we set out:

•    the variations to the Supported Employment Services Award 2010 (SES Award) which we were currently minded to make, subject to the conduct of a trial concerning the new wages structure and the receipt of further evidence and submissions following the completion of that trial;

•    a proposed timetable for conduct of the trial and the implementation of the variations; and

•    our expectations concerning Commonwealth Government financial support for the trial and implementation process.

After the receipt of further submissions in response to the provisional views and draft determination in that decision, a conference was conducted with interested parties by Vice President Hatcher on 20 December 2019. The purpose of this statement is to set out the future course we intend to take concerning the implementation of the December decision, including the identification of some modifications to the provisional approach taken in the December decision, having regard to the issues raised by the parties which participated in that conference.

(Footnote omitted.)

127    The applicant positively contended there were “provisional” decisions in April and September 2019, but refused to characterise the December and March decisions in that way. We do not accept that the December decision, or the March decision, should be differently characterised. As we explain below, each of the decisions made by the Commission (with the exception of the one described at [128]) are redolent with language, and findings, which indicate that the Commission has not yet reached a final view about how it will exercise its powers, and what terms it will finally insert, by way of variation, into the Award.

128    In contrast, on 26 February 2020, the Commission made a final determination to vary the Supported Services Employment Award 2010 by inserting a term headed “9A Rights at work for supported employees”, the term which Our Voice had been contending should be inserted, and with which the Commission agreed.

129    In that decision, the Commission decided:

A. Further to the Decisions [[2019] FWCFB 8179] and Statement [[2020] FWCFB 343] issued by the Full Bench of the Fair Work Commission on 3 December 2019 and 21 January 2020, the above award is varied as follows:

1. By inserting clause 9A as follows:

…

B. This determination comes into operation from 1 March 2020. In accordance with s. 165(3) of the Fair Work Act 2009, this determination does not take effect until the start of the first full pay period that starts on or after 1 March 2020.

130    By this decision, after inviting and receiving further submissions and hearings about the most appropriate language for this term between December 2019 and February 2020, the Commission came to a concluded view on how it should exercise its variation power in this single respect. That was an exercise of its power under s 156(2) which could have been susceptible to judicial review in this Court for jurisdictional error. It is a concrete and relevant illustration of the prematurity of the present application.

Legal principles

131    The point of certiorari is to quash the legal consequences of conduct: Hot Holdings at [22]; Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; 246 CLR 117 at [113]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 264 CLR 1 at [28]. There are no legal consequences of the Commission’s December and March decisions. They represent the publication of the Commission’s provisional views on a number of matters, and the explanation of what it proposes to do in the future as part of the four yearly review and why. All of the matters covered in those two decisions are directed towards the ultimate goal of an exercise of the variation power in s 156 of the Act. When that occurs no doubt the variation determination can be the subject of judicial review in this Court. Meanwhile, the process remains incomplete.

132    It is true that in some circumstances, an order in the nature of a prohibition, or an injunction, may be issued to a body or other repository of statutory power to preclude it embarking upon a course of conduct which is unlawful: Annetts v McCann [1990] HCA 57; 170 CLR 596 is an example. And see Ainsworth at 594-595, per Brennan J.

133    Once a statutory task is complete, and if certiorari is not available to quash the exercise of power because it has produced no legal consequences, then declaratory relief may be available if it has been shown that a repository acted in excess of power: see Ainsworth at 596. However in Ainsworth the High Court’s analysis was about how it was that the report of the Criminal Justice Commission could be said to affect the interest of those the subject of adverse comments and findings in that report. The analysis was undertaken in the context of deciding whether the investigative and reporting powers conferred on the Commission were conditioned with an obligation to afford procedural fairness, which the High Court held they were. The analysis of when an obligation of procedural fairness might be implied is closely connected to the question of what relief will be available to remedy an effect on interests. Indeed, they are two sides of the same coin. Once the conclusion is reached that the exercise of power, or threatened exercise of power, affects interests in a way which attracts the duty to act fairly (and afford procedural fairness), and once it is concluded that the repository of the power has not observed that duty and/or is threatening not to do so, the question of relief will often be straightforward and relief in respect of any denial of procedural fairness is likely to be granted. But that is because there has been a finding that interests are affected and the repository has failed, and is threatening to continue to fail, to do what the law requires before a final decision is made. That in turn is because procedural fairness is fundamentally about a process which occurs before any final exercise of power or decision: see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [14] and [15]. It is not because the repository is part-way through a task and a person interested in how the task is being performed apprehends a power may eventually be exercised in a way the person contends is unlawful. That is the present situation, and it is unlike Ainsworth. The finality and publication of the Commission’s report in Ainsworth , and its effect on the reputational interests of the plaintiff, were the keys to the plurality’s conclusion about first, why there was a denial of procedural fairness and second, why relief needed to be granted (at 578):

It was argued on behalf of the Commission that the appellants had not been deprived of any entitlement to procedural fairness because the entitlement arose in an entire process which included the public hearings of the Parliamentary Committee. It was put that that entitlement had been or might yet be satisfied in the course of those hearings.

It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness’. The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines.

(Footnotes omitted.)

134    The Court went on to observe that the functions and responsibilities of the Commission and the Parliamentary Committee were quite “separate and distinct” (at 579), leading the plurality to conclude:

It may be that, in a particular case and as an incident to the discharge of its own functions and responsibilities, the Parliamentary Committee will redress an unfairness perpetrated by the Commission. But that is not its function. And certainly it is under no obligation in that regard. It may be that the Parliamentary Committee has redressed or will redress the unfairness involved in this case – at least in the sense of giving the appellants an opportunity to answer what was put against them in the report. But, if so, that cannot alter the fact that their reputation was blackened in circumstances in which the Commission should have given, but did not give, them an opportunity to put their side of the matter.

135    The passages we have extracted from Ainsworth make the difference clear between the situation in that proceeding and the current situation in the Fair Work Commission. There are no reputational considerations in the present case, nor any other interests affected by what the Commission has done to date. The applicant has been heard in the past, and will be heard in the future, both in writing and orally. The Commission has not indicated it will refuse to listen to any arguments put to it, or deal with those arguments. It has yet to conduct a trial of its preferred approach. It has yet to reach a concluded view about the terms of the award. The award is not proposed to come into effect until 2022. The determination under s 156(2) is many months away. It is true the Commission’s current view of the law and the merits does not accord with the view proffered by the applicant, but that is no basis for relief while the Commission’s task remains incomplete and no determination has been made.

136    The application for mandamus is similarly misconceived. The Commission’s task is not complete and it has not refused to perform its task. In those circumstances, there is nothing for the Court to compel.

137    Nor is there a basis for declaratory relief. Returning again to Ainsworth, at 597 Brennan J described why the appellant was entitled to declaratory relief:

Where an official entity, purportedly exercising a statutory power or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person’s reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity’s duty to observe the rules of natural justice. The declaration cannot assert that the report was in fact erroneous for the court is not concerned with the merits of the report. As Lord Hailsham of St. Marylebone said in Chief Constable of North Wales Police v. Evans (71):

‘The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.’

The Commission did not accord fair treatment to the appellants and it is right so to declare.

138    It was “right” to so declare, to use his Honour’s language, because there was a real controversy between the parties; indeed, more than one. The first controversy was whether the appellant was owed procedural fairness by the Commission in preparing and publishing its report to the Parliamentary Committee, in circumstances where it may make findings or publish views that could damage the appellant’s reputation. The second was, if the obligations were owed to the appellant, whether the Commission had breached its obligation. There was a further factor; namely that the report was completed and had been tabled, so that the effect on the appellant’s reputational interests (which the Court found sufficient to found an implication of natural justice) was complete.

139    As the plurality said at 582:

Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the court's declaration will produce no foreseeable consequences for the parties’.

(Footnotes omitted.)

140    In the present case, the applicant asks the Court to deal with circumstances that have not occurred (the making of a determination under s 156(2) in the terms of Attachment A to the December decision), and which on the evidence before the Court, might never happen. That is because the Commission has, first, indicated its views are provisional, second, proposes to conduct a trial to see how its “preferred approach” works in practice before reaching any concluded views and third, has demonstrated a capacity to be persuaded and change its mind. For example, the applicant cannot secure, and the Court cannot grant, a declaration about the proper construction of s 153(3) before the Commission has exercised its powers in the review in s 156(2) and the exemption in s 153(3) can be construed in light of that exercise of power.

141    Contrary to the applicant’s submissions, there are no parallels between the circumstances in the present proceeding, and the circumstances in which the High Court granted declaratory relief in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319; cf [103] of the Court’s reasons. The reasons that neither mandamus nor certiorari were available had nothing to do with prematurity, or the absence of a final exercise of power. They concerned the non-compellable nature of the personal powers under consideration. The Court expressly left to one side the question also left alive from Hot Holdings: namely whether certiorari will go to quash a decision or recommendation prior to the final exercise of a discretion where the decision or recommendation is not one which must be taken into account by the ultimate decision-maker, in particular where the right affected by the decision making process is the right of liberty: at [100].

142    The “real interest” of each plaintiff in securing declaratory relief arose because they were detained, and subject to imminent removal from Australia. The question of the lawfulness of the process which would ground that detention and removal was not a hypothetical one. Other factors such as the centrality of issues concerning Australia’s international obligations and the public interest in the observance of procedural fairness were also said by the Court to provide a basis for relief: at [103]. It was obvious there was a real rather than a hypothetical controversy between the parties in that case.

143    However, and consistently with Plaintiff M61, if the applicant had clearly established a denial of procedural fairness by the Commission, it may have been the case that at least injunctive relief could have issued: see Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [33]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [100]. That is because there would have been a real, but not hypothetical, controversy between the parties about the way the Commission was discharging its task, there being no debate that a party in the applicant’s position before the Commission should be afforded procedural fairness by the Commission. The content of the duty may have been debated, as might the question of breach. All of that would have been in the context of specific conduct by the Commission which could be clearly identified as calling into question whether it had complied with a condition on its exercise of power. Much like an adjournment power (see for example Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332), powers exercised prior to, or during, the performance of an ultimate or final statutory task may be subject to judicial review where the power exercised is affected by error of a kind which infects, or affects, in a material way the performance of the ultimate or final statutory task or function. However, that is also not the present situation.

144    The High Court has more recently endorsed the Hot Holdings proposition that where a statutory scheme creates a recommendation process as a precondition to the making of a decision under that statute, or an exercise of power under that statute, then the recommendation itself may properly be the subject of relief by way of a judicial review application: see Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [57]. In such circumstances, it is the statutory scheme which gives legal effect to the recommendation, and therefore the recommendation must itself be one made within jurisdiction: see Oakey at [59]. In Oakey at [65] the plurality applied the principles in this way:

No differently from the recommendation of the Land Court which the Minister must take into account in deciding to grant or reject an application for a mining lease under the MRA, the objections decision of the Land Court to which the administering authority must have regard in making the final decision whether to approve an application for an environmental authority can only be one which is the product of compliance with all of the express and implied conditions of the statutory process by which the recommendation constituting the objections decision is required to be produced. No differently from the statutory process for the making by the Land Court of a recommendation under the MRA, central to the conditions implied into the statutory process for the making by the Land Court of a recommendation under the EPA is that the Land Court observe procedural fairness in conducting a hearing and in making the recommendation.

145    The difference between a scheme of the kind in Oakey, and the presently incomplete, and continuing process under s 156 of the Fair Work Act is plain. The Commission is not dependent on a recommendation from any other person or body, or the performance of a statutory task by any person or body as a precondition to the exercise of its powers. It remains seized of the four year review in relation to the Award, and it is working through its own process in a careful and methodical way. That process is far from complete: indeed its incompleteness is the very reason the transitional provisions in Schedule 1 of the Fair Work Act apply to enable the Commission to finish the review. The line of authority including Hot Holdings is of no assistance to the applicant.

146    In reply, the applicant referred to s 578 of the Fair Work Act which provides:

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a)    the objects of this Act, and any objects of the part of this Act; and

(b)    equity, good conscience and the merits of the matter; and

(c)    the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

147    Contrary to the applicant’s submissions, there is no basis to consider that the Commission is not conscious of this legislative instruction, and will not remain conscious of it in the way it completes its review, and in the terms of the decision it publishes and the award it makes. If the applicant wishes to contend to the Commission that some or all of its “preferred approach” (if indeed that is what the Commission ultimately decides to implement) take insufficient or no account of these factors, especially (c), then it will be able to do so.

The grounds of review and the substantive arguments

148    Given the view we have taken, it is not appropriate to address at all the substance of the legal arguments made by the applicant in relation to ground 1 of the judicial review application, and the legal arguments in response. No doubt all these arguments will be developed in detail before the Commission if parties such as AED continue to contend they are fundamental to the lawfulness of the power which will eventually be exercised by the Commission.

149    However, a finding can and should be made about ground 2, the natural justice ground. The natural justice ground was not developed at all in the fulsome oral submissions made on behalf of the applicant, but was also not withdrawn. As these reasons have disclosed, the applicant has been given many opportunities to be heard, and has more to come. There are no parallels between the present situation and that of a decision maker exercising a power in a final way where a seriously advanced submission has not been considered. We reject the proposition that the Commission’s process to this point has involved any denial of procedural fairness (or natural justice if that term be preferred), to the applicant.

Associate:

Dated:    15 March 2021

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