Amanda Rishworth (Kingston, Australian Labor Party, Shadow Parliamentary Secretary for Health) Share this | Link to this | Hansard source

The Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the related bill before the House today go to a very complex issue. Labor understands this very well. This bill will establish a payment scheme for supported employees with intellectual impairment in Australian disability enterprises, commonly known as ADEs, who previously had their wages assessed under the Business Services Wage Assessment Tool, commonly known as the BSWAT.

ADEs are commercial businesses employing people with disability who need support to stay in paid work. There are almost 200 ADEs across Australia, supporting around 20,000 workers with a disability. Employees are paid a pro rata wage, determined using a wage tool, including the BSWAT, which was developed in 2003. It was designed to measure an employee's productivity and competence in performing a job. It has been used by successive coalition and Labor governments to determine the wages of about half of all workers in ADEs—around 10,000 people.

However, in 2011, two employees challenged the BSWAT in the Federal Court of Australia. Mr Prior and Mr Nojin did not seek compensation for wages lost. They sought a declaration from the court—a declaration they received. The Federal Court found that the tool was indirectly discriminatory against these two employees with an intellectual disability. The Federal Court reasoned that the BSWAT was indirectly discriminatory because a supported employee with an intellectual disability may never be able to meet the competency component measured by the tool. Further representative proceedings are in train. And the legal proceedings in train may take some time to resolve.

In September 2013, during the caretaker period, the Commonwealth sought a three-year exemption from certain sections of the Disability Discrimination Act 1992. As I said, this application was made during the caretaker period. It was supported by both sides of the House. The application was made to allow the continued use of the BSWAT in ADEs while the implications of the Full Federal Court decisions are worked through and a new wage assessment process investigated.

In April 2014, the Australian Human Rights Commission granted the Commonwealth a 12-month exemption whilst a new wage assessment tool was developed. Labor understands that the Australian Human Rights Commission did not take this decision lightly. The commission considered a number of issues in making its decision for an exemption, such as whether an exemption would progress the objects of the Disability Discrimination Act. Advancing the objectives of the Disability Discrimination Act is rightly the commission's primary concern—objectives such as the elimination of discrimination against people with disability, including in the area of employment, and to ensure that people with disability get equal treatment before the law and that they have the same fundamental rights as the rest of the community.

As I said, this is a very complex issue. Labor fully appreciates the complexities involved. Labor understands why the government has decided to establish the payment scheme through this bill today. And Labor will support the passage of this bill through the House. The payment scheme established by the bill intends to help employees with a disability. The idea of the scheme is to provide some reassurance to supported employees and their families and carers.

From 1 July 2014, former and current employees will be eligible to participate in the scheme in relation to work they have performed in the past. The scheme will essentially provide a top-up payment to eligible people who have had their wages assessed under BSWAT. Importantly, applicants must seek financial counselling and legal advice before their application is assessed. Access to legal advice and financial counselling is funded through the scheme. This is of critical importance to Labor—that people who choose to participate in the scheme do so because they have made an informed decision. The scheme also includes an internal and external review process so that people with a disability have the opportunity to raise any concerns. The accompanying bill, the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014, provides the consequential amendments that need to be made to Commonwealth legislation in light of the new scheme. For example, amendments to the social security law and the Veterans' Entitlements Act 1986 will ensure the payments are not income tested and so will not reduce the income support payments of supported employees who receive payments under the scheme.

The former Labor government delivered for Australians with disability and their families and carers after a decade of neglect by the previous Liberal government. Labor very strongly believes that people with disability, and their families and carers, deserve the same opportunities as other Australians to participate in the community and to access better education and employment opportunities so they can achieve their goals and aspirations. Just as Labor built Medicare, so Labor built the National Disability Insurance Scheme—already changing the lives of more than 5,000 Australians, as well as the lives of their families and carers.

If rolled out in full and on time, as the Prime Minister has promised to do, the NDIS will deliver support to around 460,000 people with disability and their families and carers. It will give people with disability more choice and control over how they receive this support. The NDIS is also an economic reform that will create jobs and unlock the productivity of people with disability and their carers.

The NDIS is the most significant reform in a generation. It is also the key plank in Labor's broader plan to give Australians with disability a fair go. The National Disability Strategy developed by the previous Labor government, alongside disability advocates, is a 10-year framework to improve the inclusion and participation of people with disability right across our community. Labor championed the National Disability Strategy as the key avenue for Australia to implement obligations under the United Nations Convention on the Rights of Persons with Disabilities.

Labor has been a champion of the rights of people with disability. Sadly, this government has scrapped the position of Disability Discrimination Commissioner. This would have been a short-sighted decision at any time, let alone when the National Disability Insurance Scheme is rolling out across the country. The loss of Graeme Innes as our nation's first full-time Disability Discrimination Commissioner means that, across Australia, people with disability and their families will lose the protection of one of their strongest and most experienced advocates.

When talking to disability stakeholders about the detail of the legislation before the House today, Labor was very disappointed to learn that the government had not consulted with those key stakeholders on the details of the payment scheme they are seeking to establish through this legislation. Labor intends to provide stakeholders with an opportunity to have their say through a Senate legislative inquiry. It is of critical importance that the government get on with the very important job of developing a new wage assessment process—one that does not discriminate against anyone with disability. The government must ensure wage-setting arrangements are nondiscriminatory and fair for all people with disability and they must work very closely with the disability sector to achieve this.

There remains an enormous amount of work to be done and Labor urges the government to get on with that work. As I said, Labor fully appreciates the complexities involved. Labor understands why the government has decided to establish the payment scheme through this legislation today and Labor will support the passage of these bills through the House.

Nickolas Varvaris (Barton, Liberal Party) Share this | Link to this | Hansard source

I am proud to speak in favour of the Business Services Wage Assessment Tool Payment Scheme Bill 2014. It is a bill worthy of support because the payment scheme it brings into effect will provide remuneration and certainty for thousands of intellectually disabled Australians while the government seeks to reform wage assessment in this vital area of supported employment. Ensuring the viability of supported employment is absolutely paramount to this government's approach to disability. The government is serious about its commitment to the lives of intellectually disabled Australians and to their ability to make a genuine contribution to society through programs provided by Australian Disability Enterprises. A payment scheme grows out of this serious commitment. The coalition is the champion both of the fair go and of having a go. Those values are central to the philosophy of this bill and all related measures.

The background of the scheme relates to a Federal Court decision of 2012 which found that two employees had been indirectly discriminated against because of the nature of the Business Services Wages Assessment Tool, or BSWAT, under which most intellectually disabled employees of Australian Disability Enterprises had their wages determined. This finding of indirect discrimination resulted from a comparison of two workers of equal productivity with different kinds of disabilities. It was found that workers with an intellectual disability were significantly disadvantaged in comparison to their physically disabled counterparts in demonstrating their skill and productivity using the questions asked by the BSWAT.

The BSWAT questions were often of an abstract or metacognitive nature, such as 'How do you help out in the workplace?'—meaning that employees with intellectual impairment were disadvantaged by this means of determining workplace competency. Because of the intellectual rather than physical nature of their disability, intellectually disabled Australians were less able to demonstrate their value through the competency measures in the Business Services Wage Assessment Tool. What was of concern to the Commonwealth government was the Federal Court's finding that indirect discrimination was occurring through the use of a wage assessment tool which was not suited to the needs or abilities of people with an intellectual disability.

The central purpose of the scheme is to respond to that finding of indirect discrimination—for the sake of employees of Australian Disability Enterprises—while a longer term measure is devised. The indirect discrimination arose from the lesser ability of intellectually disabled employees to respond to abstract questions in a way that would be deemed appropriate by those administrating the Business Services Wage Assessment Tool, even though their answers and the ostensible implications of those answers were not reflective of the way the employees were really completing their work or interacting with co-workers. Furthermore, the threshold for the 'not yet competent' label to be applied to a category of competency was extremely low. If employees were deemed not yet competent for just one of the several parameters of competency, he or she would be deemed 'not yet competent' for the entire category.

By shifting the focus from the often hazy notion of 'competency' to the more concrete and relevant measure of 'productivity', the government is taking the Federal Court decision into account and setting a new agenda for the new payment tool that will be developed. This is a government that recognises that productivity is the key feature to consider when determining the value of work, especially when less concrete features are difficult to adjudicate in the case of vulnerable individuals with an intellectual impairment. While the government addresses this issue, a payment scheme fulfils the ongoing needs of intellectually disabled employees to receive certainty about their employment and remunerate them for work provided while the Business Services Wage Assessment Tool was being used. It is important to note that, rather than making a judgement about the level or nature of the pro rata wage in question, the Federal Court decision found that the tool used to assess wages had shortcomings that amounted to indirect discrimination. The fairness and relevancy of the wage assessment tool will be the focus of the government's future legislation in this area, rather than a focus on levels of wages in abstract terms.

This scheme, and the initiative to which it is related, holds a particular significance for my electorate of Barton. A couple of months back, I visited the Intellectual Disability Foundation of St George, one such Australian disability enterprise within my electorate of Barton. Through charitable donations, the funding it receives through the Commonwealth government and its own revenue, the Intellectual Disability Foundation operation Ascalon Enterprises provides businesses with reliable packaging and capping services and disabled Barton residents the opportunity to work. Predominately the enterprise requires workers to engage in simple physical tasks such as packing, capping and sealing, working to a retail standard with a focus on quality and safety. By speaking with the employees at Ascalon Enterprises, I saw that for those involved the opportunity to work meant the opportunity to make a contribution to society—to feel valued, useful, and needed.

For those at Ascalon, the work provides a feeling and a quality of life which cannot be achieved by anything other than employment. The work that the Intellectual Disability Foundation of St George provides is so fulfilling and such a positive force for those that work there that there is a high demand to be employed there, with a long waiting list to come on board. That is why Australian Disability Enterprises are such an important social investment by the government—one that must remain sustainable and grow into the future. It is impossible to emphasise the value of such schemes enough.

This is the sort of quality of life we should be seeking to provide all intellectually disabled Australians who have the ability to undertake this sort of work. The majority of this work is undertaken by Barton residents with an intellectual disability, many of whom would have their wages assessed under the Business Services Wage Assessment Tool. Certainly it is important that these employees know that they are really working for a wage; they have a right to be supplied with reasonable and achievable productivity goals and receive a wage for achieving them, in addition to their disability support pension. However, what is even more important than referring to an hourly wage out of context is to consider the package of support that employees receive through their involvement with Australian Disability Enterprises and the government more generally. Support packages like the disability support pension, disability counselling and on-site care mean that to look at the reward employees receive merely by isolating the wage of an employee to an hourly wage is beside the point. To drastically increase the wage paid to these employees by Australian Disability Enterprises without doing so according to a reasoned scheme would seriously threaten the viability of operating supported employment at all.

As a government, our priority is undoubtedly the continuation of a scheme that is adding so much value to the lives of 20,000 Australians. It is very important to remember that a large number of employees with an intellectual or physical impairment who work with ADE would not otherwise have found employment in the open labour market. Therefore, the pro rata wage employees receive should be considered in the context that many of these programs run at a loss and operate for the good of their employees. Our payment scheme and our intention to legislate for a new wage assessment scheme will provide certainty for intellectually disabled Australians who may be unsure about the way in which their wages are determined. It does due diligence by taking the Federal Court decision into account, respecting its finding of indirect discrimination and resolving to attend to issues of discrimination as soon as we become aware of them, out of respect for the valued employees of Australian Disability Enterprises.

This was an area in which the previous Labor government did not legislate, meaning that the Business Services Wage Assessment Tool had been deemed discriminatory in 2012 but Labor left government in late 2013 without responding to the issue. It has taken a coalition government to respond to the Federal Court decision and reconsider the issue of wage assessment. The payment provides the provisional certainty that the sector needs while we will address the shortcomings of the Business Services Wage Assessment Tool and devise a new scheme for assessing pro-rata wages. In alliance with the NDIS, schemes such as these show that the government is serious about providing Australians with a disability with the support, reward and opportunity they need to thrive as full members of our great Australian community. I commend the government on taking the steps not only to devise a new assessment tool for the wages of disabled employees but also to provide a payment in the meantime which gives assurance and certainty to those affected regarding their employment, until a new scheme is devised.

So what makes this scheme commendable and what makes this bill worthy of my colleagues' support? This bill provides certainty to working Australians with an intellectual disability. It provides economic sustainability, as employers cannot afford to provide the kind of one-off payment to a large number of employees that the government is able to provide as a result of this payment scheme. It reassures employees that the government wants to ensure that they are paid appropriately according to a fair scheme, and pay them for past work that may have occurred under an unfair scheme. It responds appropriately to court decisions and respects the mandate that the findings necessitate change for the sake of the employees. It pays valued employees appropriately for genuine services rendered while seeking to maintain the viability of the scheme by taking the pressure off individual employers. Thus, it secures the valuable work of Australian Disability Enterprises, ultimately for the sake of the 20,000 Australians that Australian Disability Enterprises employs. It has extremely reasonable, but non-negotiable, deadlines to apply; it has both external and internal review processes; and the terms of the scheme are well expressed to the relevant parties in ways that make sense to them. One of the best facilities of the scheme is its provision of legal and financial advice free of charge to potential recipients as they consider their options. This is one way the specifications of this bill work to provide choice and control for applicants with a disability. This is a voluntary payment which employees have the right to consider as an individual and with the help of nominees and advisers. They also have the ability to seek review of any decisions made in relation to eligibility.

This is a fair scheme, offered in good faith to those employees of Australian Disability Enterprises with an intellectual disability who have had their wages assessed under the Business Services Wage Assessment Tool, in order to provide them with certainty and remuneration. By shouldering the cost of a payment scheme, the government is safeguarding the viability of Australian Disability Enterprises for the sake of intellectually disabled Australians. It is a bill most worthy of support, and I commend the bill to the House.

Jill Hall (Shortland, Australian Labor Party) Share this | Link to this | Hansard source

These bills, the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the related bill, are important legislation. They are legislation the opposition will be supporting.

I listened with some interest to the member for Barton; he said the previous government did not legislate in this area. The previous government was in the process of consulting with the community—consulting with all the players in the space—and was in the process of developing legislation. I forgive the member for Barton; he is only a new member in this place and his ability to assert such information is probably very limited.

Turning to the bill, I would firstly like to say it is imperative that people with intellectual disability be able to maximise their potential and be given the opportunity of being recompensed for the work they do. I previously worked with people with intellectual disability and other disabilities. I know just how important and how valuable it is to people with an intellectual disability to be able to work and be valued in the way other people work and are valued.

The role of government is to put in place a framework within which they are able to do this—where they are recognised, where they are able to be offered employment and where they are able to succeed. I have a very good business enterprise centre in my electorate, the House with No Steps; also operating in my region is Access Industries. The House with No Steps has created opportunities and employment for many people with intellectual disability over a very long period of time, and working for that business enterprise centre has changed the lives of many people with intellectual disability.

This bill will establish a new payment scheme for supported employees with intellectual impairments, in Australian disability enterprises such as the House with No Steps, who previously had their wages assessed under the Business Services Wage Assessment Tool. The scheme will essentially provide a top up payment to eligible people who have been assessed under the BSWAT. If eligibility is established, a payment amount will be offered based on half the amount the worker would have been paid by the productivity element of the BSWAT being applied. This new scheme follows a Federal Court ruling that found the BSWAT to be indirectly discriminatory towards two employees with intellectual disability whose wages were assessed using the tool.

The Australian Human Rights Commission has provided the Commonwealth with 12 months exemption from the Disability Discrimination Act while a new wage assessment tool is developed. I would like to strongly encourage the government to work toward finalising that assessment tool and to consult widely with those involved—both those within the business services industry and people with intellectual disability and their advocates—because it is imperative that tool be developed and people with intellectual disability not be left hanging, waiting for it to be completed. The lack of consultation by the government in developing a tool that is going to be truly useful and truly fair worries me. We need to have the maximum possible consultation.

To be eligible for the payment scheme a person must have an intellectual impairment, been employed by an ADE and been paid a pro rata wage determined under the assessment tool. They must have required daily support in the workplace from the ADE to maintain their employment. These are very important requirements because, if they are not met, there is really no strong argument for the payment to apply. Applicants must seek financial counselling and legal advice before their application is assessed. Access to legal advice through Legal Aid, and to financial counselling through the Commonwealth Financial Counselling service, is funded through the scheme. That is to ensure the person with intellectual disability actually gets the information and the advice they need to make the decision. If a person does sign up—if the applicant accepts an offer—they will cease to be a group member of the representative proceedings and will be unable to make further claims in relation to the assessment of wages under the tool. It is imperative that the person gets the right sort of advice and has that legal and financial counselling, so that they or their advocate can determine whether it is in their interest to go that way. The scheme will remain open until 15 November 2015.

The Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014 provides consequential amendments that need to be made to the Commonwealth legislation in light of the new scheme. For example, amendments to the tax law will ensure payments under the scheme are eligible income for the lump sum in arrears tax offsets. Amendments to the social security laws and the Veterans' Entitlements Act 1986 will ensure the payments are not income tested and so will not reduce the income support payments of supported employees who receive payments under the scheme. The confidentiality provisions in the social security law will be adjusted to make sure that personal information can be obtained and disclosed for the purpose of administering the new scheme.

As you can see, this is quite complex legislation and it is legislation that needs to be put in place so that supported employees with intellectual disabilities in Australian disability enterprises, who previously had their wage assessed under the Business Services Wage Assessment Tool, will be in a position of security and will have the knowledge that the payments received will be in line with the law.

There are almost 200 Australian disability enterprises across Australia supporting around 20,000 workers with disabilities. That is a very significant number of disability enterprises and a very significant number of workers. These workers really need to be protected by legislation to ensure that they are not exploited, to ensure that they get the recompense that they deserve, to ensure that they enjoy a good quality of life and to ensure that they can go to work each day and receive the same sorts of rewards that other people receive when they go to work.

The Business Services Wage Assessment Tool was first developed in 2003 and the tool measures an employee's productivity and competence in performing a job. It is used to determine the wages of about half of all Australian disability enterprises. However, as has been mentioned by previous speakers, two employees recently challenged the Business Services Wage Assessment Tool in the Federal Court. The Federal Court found that the tool discriminated against these employees and that, hence, it could discriminate against other employees. The Federal Court found that a supported employee with an intellectual disability may never be able to meet the competency component measured by the tool, so further representative proceedings are in train.

This brings me to the comments by the member for Barton. This shows that this is not an open and shut process; rather, it is an ongoing process. There has been a 12-month exemption put in place because this is state legislation. The exemption is giving 12 months for the final tool to be developed and I really hope that it is done with the proper level of community consultation. That exemption was granted in April this year.

This is a very complex issue, as has been stated by previous speakers in this debate, and Labor understands that. We want the best legislation to be put in place and for the best protection to be provided to workers with an intellectual disability. We understand that it is because this issue is so complex that the government has decided to establish the payment scheme set out in this bill today. The idea of the scheme is to provide some reassurance to support employees, their families and their carers. The payment scheme will commence on 1 July this year and that is why it is quite important for it to pass through the House. Former and current employees will be eligible to participate in the scheme and to receive payment in relation to work they have performed in the past. It is critically important to Labor that people who choose to participate in the scheme do so on an informed basis. That goes back to the financial and legal advice funded through the scheme. It is so important that employees are able to access that.

I encourage the government to get on with this very important job of developing a new wage assessment process that does not discriminate against anyone with any type of disability. I encourage the government to consult widely. I know that we on this side of the House want this to go to a Senate committee for an inquiry to look at all aspects of it. I think that is very prudent. I think that the overall emphasis of any legislation in the area of disability—and particularly in the area of intellectual disability—should be ensuring that the people who will be covered by the legislation will be advantaged, not disadvantaged. I think it should be ensuring that the legislation will provide protection, not promote discrimination or set up a situation where people with an intellectual disability are exploited and receive low wages for the job they do and for their level of productivity. So, as the parliamentary secretary has said, the opposition will be supporting this legislation.

I will be watching very carefully to ensure that the government makes sure that fairness is encapsulated in the final legislation when the assessment tool is finally developed. I conclude by saying consult widely with everybody involved in this area. It is important legislation and we need to maximise the potential of people with an intellectual disability. This can best be done by having a proper assessment tool in place so that they get their recompense for the work that they do.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

I commend the previous speaker. It is a very important bill and it is quite a complex issue that we are talking about. Sometimes when you talk about issues of fairness and equity, it can have the exact opposite effect. That is obviously why this bill is being considered. As we know, this bill is establishing a payment scheme for supported employees with intellectual impairments in Australian Disability Enterprises who previously had their wages assessed under the Business Services Wage Assessment Tool.

The payment scheme will help provide ongoing employment for employees with a disability. Mr Deputy Speaker, I am sure you are aware—because you are very active in your community and very well respected—that there are 193 organisations operating Australian disability enterprises in communities across Australia, supporting 20,000 workers with moderate to severe levels of disability. You might be interested to know that, as in all communities, I have a number that do absolutely fantastic work. What they provide these workers with disabilities cannot be measured in financial gain; they provide them with a sense of purpose, with social interaction and provide respite for carers and parents. I cannot name all the organisations in my community—there are so many—but some are Caringa, Windara in Casino, Summerland House, the House with No Steps, which operates extensively throughout my community.

Another enterprise is a group called Multitask. The people who run Multitask were so concerned about the issues that this bill is responding to that they asked me to go to visit them and their workers to see what they do and the benefit it provides everyone in that facility. Graham Mapstone, the CEO of Multitask, invited me out. Raelene Vincent, Kim Vincent and Joe World showed me around. I had the pleasure of meeting the 40 or so people working there that day. They all came up to me and pleaded that 'We don't want to lose the option of coming here. We want Multitask to be able to offer this service.' There are many reasons beyond the financial that they are there, but they were so passionate about it. After my visit, Miss Leanne Maree Butt rang my office and insisted that she come to see me to reinforce the importance of the organisation. She wrote me a poem, which she has asked me to read out in parliament, and I will. The poem is headed 'Challenge Multitask Meeting with Politicians'.

Just come and sit down for a while or two,

Politicians, as well as us usual people,

If you take our jobs away from us,

It leaves us poor and bored,

For there is nothing to adore.

Sit for a while

With a happy go lucky smile

Upon our facial dials.

Dear politicians just think for a while

And leave our jobs for us, please,

So that we can wear happy go lucky smiles

Upon our facial dials for a fairly long time.

It is a lovely poem and I think it epitomises the passion and the reward she gets from going to Multitask—the benefits for her from going there two or three times a week are intangible. She engages with her friends there, and she has been doing it for many years.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I should say to the member for Page that that was excellent.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

Thank you, Mr Deputy Speaker. Some of the people I met there have been going to this place for decades. Their very elderly parents were with them, and these parents were pleading with me, saying, 'Please don’t let the changes that are muted mean that this won't happen any more.' Sometimes their children were in their 20s and 30s and even older, but the benefits they get—I know, as a compassionate person, you understand this, Mr Deputy Speaker—are not financial rewards but all the intangibles.

Due to legal proceedings concerning the Business Services Wage Assessment Tool, which may take some time to resolve, the government has rightly decided to establish a payment system to give reassurance to supported employees, their families and carers to remove perceived liability that could impact the ability of Australian Disability Enterprises to deliver ongoing employment support. The payment scheme provided by this bill will allow registration from July for payments to former and current employees in relation to work they have performed in the past. The payment scheme will deliver payments to eligible workers as quickly as possible. If a person is eligible, the payment will be calculated based on half the amount the worker would have been paid, had the productivity element only of the Business Services Wage Assessment Tool been applied.

If the payment amount works out to be greater than zero, the eligible applicant will receive a letter setting out an offer to pay that amount and the time in which the applicant may accept the offer. During the acceptance period, the applicant must seek independent financial counselling and legal advice, because we want everyone to go into this informed and aware. Access to a legal adviser and a financial counsellor is funded through the scheme, and certificates from the financial counsellor and the legal adviser must accompany the applicant's acceptance of the offer. Again, as you can see, Mr Deputy Speaker, we are doing everything we can to ensure that people go into this very informed and comfortable with what is going on.

Payment will be made once valid acceptance has been lodged by an eligible applicant. To ensure people with a disability have the opportunity to provide further information or raise any concerns, the scheme will have both internal and external review processes. It is the applicant's choice—again, very important—whether he or she receives a payment from the payment scheme. If the applicant accepts an offer, he or she will cease to be a group member of the representative proceedings and will be unable to make any further claims in relation to the assessment of wages under the tool. In the longer term, a new wage assessment process will be developed for use in Australian disability enterprises. This will obviously be ongoing over the next little while. It is also something that is going to have to be done very carefully, because this is one of those situations where we do not want to throw the baby out with the bathwater. This is a very important sector of our community for people with a disability and we must make sure that it survives. However, the government's immediate priority is to ensure minimal disruption to the employment of supported employees. The payment scheme established by this bill demonstrates our ongoing commitment to improving certainty for those involved.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

The reason that we are debating the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and related bill in this parliament is because of two men, two Australians: Mr Nojin and Mr Prior. Mr Nojin is a worker who has cerebral palsy and epilepsy. He worked in an 'Australian disability enterprise'—the term of art used in the sector. He worked for a place called Challenge. One of the services that were offered by Challenge in which Mr Nojin was employed was secure document destruction. It is not the kind of business that is limited to disability enterprises but a business of the kind that you see generally in the office world. There were some other services that the enterprise offered but they were often on a fairly small scale.

Mr Nojin was asked to do a number of tests and tasks when he arrived there that corresponded with some of the work that he did. He was asked to collate pamphlets, which involved inserting fliers into pamphlets; pen assembly, which involved fitting a ballpoint ink insert into a wooden pen casing; and feeding one crate of pre-sorted documents through a mechanical shredder. The court ultimately said—and I will come to the court case in a moment—that these tasks were simple and repetitive and involved no element of decision making. There was no need to apply abstract concepts to the work that was being done and, in each case, the work involved simple physical manipulation of limited items.

Mr Prior, the other worker who is the reason that we have this bill, is someone who is classified as legally blind, although he did have some vision. He was also classified as having a mild to moderate intellectual disability. He worked for a different enterprise and, at the time of his first assessment under the test—the assessment tool that is the subject of this bill and the subject of the court cases—his time was split evenly between mowing lawns and some other general gardening tasks. At the time of his second assessment, 90 per cent of his time was actually spent mowing lawns. He was a blind worker, with a mild intellectual disability, who was mowing lawns. The other 10 per cent of his time was spent raking and disposing of leaves, and he worked under direct supervision. When he went to work, they timed him and assessed how good he was at doing this work. It was found that he took 14 minutes to mow a five by 10 metre area of lawn and his supervisor took nine minutes to mow a similar area—so he took longer but it was not even twice as long as his supervisor. Again, you can look at the tasks that he was performing and, like Mr Nojin in the document centre, you can see that they were relatively simple and straightforward tasks that they were required to perform.

Then came the question of how much to pay these two workers, one of whom was mowing lawns and the other of whom was working collating documents and shredding documents and the like. This is when the enterprises applied what is called the BSWAT, Business Services Wage Assessment Tool, which is the subject of this legislation. When the enterprises put them through that assessment and applied that tool, they asked them questions that bore no relevance to the work that Mr Nojin and Mr Prior were doing, but it had a huge impact on them. When they were asked some of the questions—and I will give examples of some of them in a minute—these two intellectually disabled workers scored low; in fact, for some of the tests they scored zero. As a result, their pay was substantially cut.

Mr Nojin, for example, was assessed as competent for everything, except when they asked him questions like 'What workplace meetings do you attend, and what are these meetings for?' I think this is something that everyone who works in an office anywhere in Australia probably asks themselves a lot of the time, but they asked him and he could not give an acceptable answer and so he scored zero on the test for that part. They asked him questions like, 'What are some other jobs that people do here?' Again, it was not very evident that it related in any way to the work that he was doing. He could not answer it, so he scored zero.

Mr Prior was also asked questions which he found difficult to answer because of his intellectual disability and which were not related to the mowing of lawns that he was doing. For example, they asked him, 'How can you help others at work?' He replied that he would try not to get involved—and apparently that was not a good answer and so he was marked down. As a result of going through these tests and scoring zero for a number of things that were not related to the work that he was doing, Mr Nojin ended up being paid $1.85 an hour for doing work for an enterprise that he, by all accounts, including the account of his supervisor, was doing very, very well. It was just that when this tool was applied to him and he scored zero on a number of things, he lost money. It was the same with the other worker. As a result, they very, very bravely took the matter to court.

They took the matter to court believing that they were productive workers who were being massively underpaid, courtesy of a tool that the government had in fact approved. They argued that it was unfair and discriminatory, because someone who had an intellectual disability was never going to do well on that test and was always going to lose money, even though they could do the job very, very well. In fact, Mr Prior, the lawn mower, at the time of the case going to trial had left that job and was working at Stawell Drycleaners, earning five times the wage that he had previously been earning. The Full Court of the Federal Court said to these two workers, 'You are right. This tool discriminates against you and this system that we have in place does not allow for you as workers with a disability to be paid properly in accordance with your productivity. In fact, by definition, especially if you are a worker with an intellectual disability, you will end up being worse off.' So they won. They were two courageous employees with a disability who took on the system and won. The Full Court of the Federal Court said, 'Yes, you're right. You deserve to be paid more.'

It takes a lot of guts to stand up and be the first ones to go through a legal challenge, but they did it. They did it not just for themselves but also for all those other tens of thousands of workers with a disability who also feel that they are being underpaid at the moment. Those workers have begun a class action to say, 'Just as Mr Nojin and Mr Prior got their just entitlements by going through the courts, so too are we entitled to do that.' This class action, for up to 10,000 workers, is underway.

It is because of that class action that we are seeing this bill. It is because the government now realises that, if Mr Nojin and Mr Prior were successful and were entitled to the basic principle of being paid in accordance with how good your work is, perhaps all of these other workers are as well. So, in what is nothing more than an attempt to derail this class action and disadvantage up to 10,000 workers with a disability in this country who are hoping for justice, the government has brought in this bill. The solicitor representing these employees with a disability calls this an abuse of power—and she is right. She says that it will mean that those up to 10,000 workers who have a disability are likely, if they are successful in their claim, to have their compensation and their payments, the wages for their productive work, cut by about half. In other words, this bill is being brought in to head off a class action being brought by up to 10,000 workers with a disability.

In that respect, I am not surprised to see the government take action to ensure that the most vulnerable of workers do not get what they are legally entitled to, like Mr Nojin and Mr Prior did, but I must say I am surprised that Labor is supporting them. I am surprised that Labor is supporting the derailing of a class action being brought on behalf of up to 10,000 employees with a disability. I hear some hope in the comments from the Labor speakers that this matter will go to a Senate inquiry and they will look at it. If, when this goes to the Senate, given that Labor and Liberal are going to vote it through here, the Senate inquiry does not change their minds, at a minimum Labor should look at how to protect those 10,000 workers who currently have a class action on foot. Otherwise, Labor will be responsible for saying to those 10,000 workers, 'You are not entitled to the same justice and victory that Mr Nojin and Mr Prior got.' Labor will be saying to them, 'While those two got through the gate early and, my goodness, a court said they were being underpaid and as workers with a disability they should be entitled to payment in accordance with how they contribute to the workplace, no, we agree with the government that you don't have the right to your day in court and that you should be forced into a humiliating settlement of about half of what you otherwise might have been entitled to.'

It appears to be the case that, unfortunately, this bill will get through this House, but I am not without hope that the process of the Senate inquiry, and perhaps a moment's reflection, will lead the opposition to understand that this is an unnecessary kick in the guts for up to 10,000 workers with a disability, at a minimum, let alone what it is going to mean for all of those who come afterwards. Everyone in this chamber and in the other place would agree, without a shadow of a doubt, that we need a system at work that encourages employees with a disability to get into work and stay in work. I think that would be universally shared amongst everyone. The question is: in this instance, with this bill, how much do you pay them? Do you pay them in accordance with their productive capacity and what they can contribute to a workplace? Do you say, 'How do you stack up compared with a worker who does not have a disability? Or do you say, 'We'll apply a test that allows you to be paid much, much less if you have an intellectual disability'? That is what this bill is trying to get around. It is trying to erase the significance of Mr Nojin and Mr Prior, who took courageous action to hold a government to account. They deserve to be applauded and supported by this parliament; so does everyone involved in the class action who is following in their footsteps on the basis of their significant decision.

I conclude by repeating: it comes as no surprise that the coalition wants to take away the rights of low-paid workers, but I urge the opposition to have a rethink before this bill passes the Senate and to choose to stand up for those workers who are currently seeking justice through the courts and seeking the same right that every one of us would ask for, which is, 'Pay me according to the worth of the work that I do, not who you think I am.'

Sussan Ley (Farrer, Liberal Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I am delighted to sum up this bill on behalf of the Minister for Social Services. These bills deliver on the government's priority to ensure minimal disruption to the employment of supported employees. The payment scheme established by the bills demonstrates our ongoing commitment to improving outcomes for supported employees, their families and carers. I would like to note the government's appreciation for the opposition's support of this legislation. I would like to recognise the kind remarks by speakers on both sides of the House and recognise too every member of this place and their support for those who work in supported enterprises and those with disabilities entering, leaving or participating in the workplace. These important bills will provide Australian disability enterprises and the 20,000 workers they support with greater certainty to operate into the future. I thank the House.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt and Mr Wilkie voting no.

I have received a message from his excellency the Governor-General recommending in accordance with section 56 of the Constitution an appropriation for the purposes of this bill. Is leave granted for the third reading to be moved immediately?

Leave granted.

Sussan Ley (Farrer, Liberal Party, Assistant Minister for Education) Share this | Link to this | Hansard source

By leave—I move:

That this bill now be read a third time.

Question agreed to.

Bill read a third time.