Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Payments) Share this | Hansard source

I am pleased to be speaking on the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016. This bill amends the Business Services Wage Assessment Tool Payment Scheme to provide a higher payment to people with disability who are paid an unfair wage under this tool. This issue has a long and complex history so it is worth briefly recapping just how we have come to this point.

The Business Services Wage Assessment Tool, otherwise known as BSWAT, was used to determine the wages of people with disability working in Australian disability enterprises. There are around 20,000 Australians who are employed at these ADEs. Supported employees working at these organisations are paid a pro rata wage, calculated using a number of different wage assessment tools of which BSWAT was one. Around 10,000 workers were assessed using BSWAT.

In 2012, the Federal Court found that this particular tool indirectly discriminated against people with intellectual disability. This was because the Business Services Wage Assessment Tool Payment Scheme assessed the competency as well as the productivity of the employee—meaning a person with an intellectual disability was paid a lower wage on the basis of their intellectual impairment. Following this ruling, a class action was brought against the Commonwealth on behalf of supported employees seeking back pay for the wages they had been underpaid as a result of being assessed under this discriminatory tool. While this class action was underway, the government introduced legislation to set up this payment scheme.

The scheme offered back pay worth 50 per cent of the difference between that which workers actually received under the Business Services Wage Assessment Tool and what they would have received if the competency component of the tool had not been included. Labor opposed the original bill not because we do not support such a payment scheme because of course we do. The Federal Court found that these supported employees were indirectly discriminated against because of the type of their disability. Of course we support justice for them and we support a payment scheme to help compensate for the wages they lost.

Labor opposed the original bill because it unfairly tried to silence people with disability. It meant that people who accepted a payment under the scheme were precluded from pursuing further legal action for lost wages. In Labor's view, it was wrong for the government to deny the legal rights of people with disability at the exact same time as a class action was underway.

People with disability who are denied justice and denied wages deserve their day in court. Labor came to this position after listening to the views of people with disability and their advocates. We did not pretend to know what was best for them. We certainly did not pretend to speak with them. We did not make decisions affecting them without first hearing their views. People with disability did not support the original scheme and the onerous conditions that it placed on them, so Labor opposed it. We were guided by what people with disability wanted. It was true then and it is true today.

This important legal process has now been completed. Labor welcomes the settlement that has finally been reached between supported employees and the Commonwealth. The settlement means that thousands of workers with disability will get fairer back pay for the wages they were denied, a much better deal than would have been the case if this class action had not proceeded and the original payment scheme was left in place.

Under the settlement, people with disability who were originally paid wages under the Business Services Wage Assessment Tool will be paid 70 per cent of the difference between the wage they received and the wage they should have received. The original act now needs to be amended to reflect the agreement that has been reached. The Federal Court will then be in a position to approve the mediated settlement once this legislation has passed.

Now that people with disability have reached the settlement, an agreement that they are happy with, an agreement that actually involves them, we do support this legislation to give effect to the settlement. Once this happens, those who were involved in and supported the class action can apply for payment under the scheme. Those who have already received a payment under the existing scheme will receive an automatic top-up to reflect the better deal reached under the settlement.

Importantly, the registration period for the scheme will be extended by 12 months to give people more opportunity to apply for the payment. These payments will reflect historic indexation and will not be assessed as income for social security purposes. Labor is pleased that this issue can finally be resolved and that people with disability can receive a fairer wage for the work that they perform.

On behalf of the opposition, I particularly want to pay tribute to the two individuals who initially challenged the validity of this wage assessment tool and the thousands more who subsequently joined them in the fight for fairer pay. I also want to acknowledge the many organisations and advocates who stood with the employees and supported their cause. We can now move on from what has been a difficult process over many years and we can focus on the other issues in this area that are yet to be properly addressed. While this bill gives overdue justice for some supported employees with disability, it unfortunately does not end the ongoing uncertainty surrounding the future of Australian disability enterprises and supported employment.

The government is developing a new productivity-based wage assessment tool to replace the Business Services Wage Assessment Tool. I understand this work is still being progressed through the Fair Work Commission. This must be finalised as quickly as possible, and I urge the minister to make it a personal priority. The sooner we have an unambiguously fair assessment tool, the sooner we can be sure that people with disability are being paid a proper, non-discriminatory wage. And the sooner we can end the financial and legal uncertainty that is shrouding the sector, the better for people with disability and their employers.

The government must also address the concerns regarding wage supplementation for Australian disability enterprises. Many opposition members have received several troubling reports from our local organisations, reporting that this process is unwieldy, lengthy and inadequate. Alarmingly, some ADEs have told us that they are hundreds of thousands of dollars out of pocket after their wage supplementation payment. This is placing some ADEs in immediate financial jeopardy. Labor believes that the government can do more to support and reassure the sector—and they must get on and do so. The interests of people with disability are best served by having a sustainable ADE sector capable of paying fair wages. That is what the government should aim to achieve.

The truth is that we can all do more to make sure that people with disability are full participants in the community. Too many people with disability want to work and can work but are not given the opportunity. Australia continues to have one of the lowest employment rates of people with disability in the OECD. This is just not good enough. Too many people with disability live in poverty and disadvantage. Too many live on the margins of society, isolated and alone. We can all do more. Of course, the National Disability Insurance Scheme is going to be a big part of addressing this—but just one part. While the NDIS will transform the lives of hundreds of thousands of Australians with disability, many more people with disability will still need our support so that they too can reach their full potential. It is for this reason that Labor believes that the National Disability Strategy must be reinvigorated to ensure its goals reflect the goals of Australians living with disability; to ensure our efforts stretch across every area of policymaking; and to make sure that we implement these strategies, and not just talk about them.

In closing, I want to quickly return to the central issue: the wages that people with intellectual disability deserved but were deprived of. In the final analysis, this issue is about more than just a wage; it is about respect. It is about whether we respect the capabilities and contributions of people with intellectual disability. It is about whether we value their work and whether we recognise them as equal members of society. With this settlement, we can go some way to restoring not just the wages but also the respect that people with intellectual disability had been denied. I commend the bill to the House.

See this speech in context