Christian Porter (Pearce, Liberal Party, Minister for Social Services) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

This bill will amend a payment scheme established by the Business Services Wage Assessment Tool Payment Scheme Act 2015 to give effect to a recently mediated settlement agreement between the Commonwealth and the applicant in a representative proceeding in the Federal Court of Australia, notably, Duval-Comrie v the Commonwealth of AustraliaVID 1367 of 2013.

The Australian government provides funding to Australian Disability Enterprises through the Disability Services Act 1986 (Cth)to provide employment support to workers with moderate to severe disability. There are 184 organisations supporting around 20,000 workers with a disability in such employment across Australia. Australian Disability Enterprises can use wage tools prescribed in the Supported Employment Services Modern Award 2010 to determine pro-rata wages for workers with a disability. The Business Services Wage Assessment Tool, the subject of the Federal Court proceeding, was previously used for this purpose.

In 2012, two supported employees were found through a separate Federal Court decision to have experienced indirect discrimination under the terms of the Disability Discrimination Act 1992 (Cth), because their wages were assessed under the BSWAT, as it is known, based both on their productivity and on their competency. That case was that of Nojin v the Commonwealth of Australia [2012] FCAFC 192. The subsequent representative proceeding on behalf of a limited group of supported employees was then initiated and remains before the Federal Court of Australia. The applicant seeks compensation calculated on 100 per cent of the difference between the wages that they were paid and the wages that they would have been paid if their wage was assessed based only on their productivity.

As a result of the earlier Federal Court decision, the Commonwealth government established the BSWAT payment scheme in 2015 . That has been providing one-off payments to eligible supported employees of Australian Disability Enterprises at 50 per cent of the difference between the wages they were paid and those they would have been paid if the competency component was not included in the wage assessment tool.

The Commonwealth's payment scheme is helping to provide certainty to supported employees that their employers will not close because of concerns about employers' perceived liability for discrimination following that earlier Federal Court case.

With very significant Commonwealth support, Australian Disability Enterprises are commercial businesses employing people with a disability who need support to stay in paid work. These supported employees are paid wages using revenue from the enterprises' business activities.

As I have previously noted, there are 184 organisations operating Australian Disability Enterprises in communities across Australia—supporting 20,000 workers with moderate to severe levels of disability.

Supported employees are paid a pro rata wage. Their wage is determined using a wage tool stipulated in the Supported Employment Services Award 2010, which is one of the 'modern awards' in the Commonwealth workplace relations system.

The BSWAT was one of these wage tools. It was developed by the Australian government in consultation with stakeholders, and was first introduced and used in 2004. The tool determined a worker's wage by measuring both their productivity and competence in performing a job.

On 16 December 2015, the Commonwealth announced that a settlement had been agreed with the applicant in the representative proceeding that I previously described before the Federal Court. The amendments in this bill will give effect to that settlement agreement.

If the bill is passed, and the terms of the settlement are agreed by the Federal Court, the representative proceeding will be dismissed by the consent of the parties, and the supported employees concerned, along with their families and carers, will move into a more stable and certain future.

Importantly, the terms of the settlement are supported by advocates for supported employees, including the AED Legal Centre and People with Disability Australia, who have called the agreed settlement terms 'an outcome which sees wage justice for these employees'.

In essence the parties have agreed to settle if, amongst other matters, the payments under the current scheme are calculated at 70 per cent of the difference between the wages the person was paid and the wages that would have been paid if only the productivity component of the Business Services Wage Assessment Tool had been used, that is, not including the competency component of the wage tool. Under the current legislation, a person receives 50 per cent of the difference.

If employers had used productivity-only tools, it is clear that the average wage of supported employees would have been higher than it was. But this undoubtedly would have raised employers' labour costs. It is equally clear that some employers would have responded by reducing employees' work hours or, in some instances, stopping the hiring of some or all supported employees. In these circumstances, the important benefits of supported employment for the employees, their families and carers may well have been lost.

The parties have taken initial steps to overcome these difficulties, and have reached a payment amount that is fair to all of the relevant eligible supported employees.

The payment scheme is currently available to all intellectually impaired persons. While the representative proceeding represents a more limited class of employees, the Commonwealth, via this bill, will ensure that everyone eligible under the scheme will receive the increased payment. The government has taken this approach to maximise equity between all supported employees with intellectual impairment who were paid wages under the tool.

Under the current act, eligible supported employees will only be paid if they register for the scheme by 1 May 2016. The bill extends the dates for registering, applying for, and accepting the payments from the payment scheme by 12 months so that people have more time to register for the scheme and submit applications.

The bill will also allow a deceased person's legal personal representative to engage with the payment scheme on their behalf. The money that would have been paid to the person, if the person were eligible and the offer accepted, will now be able to be paid to the person's estate.

Importantly, the bill does not remove or weaken any of the protections of the current act. For example, the payment scheme retains key features that provide supported employees with choice and control, including:

Any person who has already received a payment under the BSWAT payment scheme that has been operating to date will receive a top-up to reflect the increased payments provided for by this bill. Importantly, people will not have to make an application or seek further legal advice or financial counselling to receive these top-ups.

The bill will still allow people who have received offers of payment to seek independent legal advice and financial counselling. The bill will amend the legal advice provision to make it voluntary, rather than mandatory. This will remove a current impediment to participants receiving their payments quickly, especially for those who receive small offers of payment. Access to these services continues to be funded under the scheme by the Commonwealth, and the government remains committed to ensuring people are able to make informed choices about their access to payments as a result of previously having been assessed using the BSWAT.

People receiving payments under the scheme are eligible for a lump sum in arrears tax offset. In addition, a payment under the scheme does not count as income, which therefore reduces the risk of affecting an individual's social security entitlements. Payments under the scheme are also indexed to the CPI for each year in the period relating to payment amounts. The effect of these protections and enhancements is to effectively increase the payments made to individuals under the payment scheme.

To ensure people participating in the scheme have the opportunity to provide further information regarding their applications or raise any other concerns, the scheme will have both internal and external review processes.

Self-evidently, any person who previously was assessed using the Business Services Wage Assessment Tool has a choice as to whether they receive a payment from the tool payment scheme. As with the resolution of any legal claim, if a person accepts an offer under the payment scheme, they will be unable to make any further claims in relation to the assessment of wages under the BSWAT.

As part of the representative proceeding's processes, class members have had an opportunity to opt out. As agreed with the other parties to the representative proceeding in the Federal Court, if this bill is passed by the parliament and the terms of the settlement are accepted by the court, the proceeding will be dismissed.

Nonetheless, this bill does not take rights away from individuals who are not members of the class currently before the Federal Court. As long as they have opted out of the proceeding, or never joined it, people who disagree with the terms of the settlement or the payments offered by the payment scheme can choose to continue to pursue their rights through the courts. Neither the current payment scheme nor the proposed amended form of the scheme prevents an individual from making that choice.

The Commonwealth government is of the firm view that the Business Services Wage Assessment Tool payment scheme provides the most favourable outcome for employees, their families and carers by removing any perceived liability on the part of supported employers Australian Disability Enterprises, who have previously used the Business Services Wage Assessment Tool to assess the wages of their employees.

Self-evidently, it is both economically rational and socially just to support employment for people with disability. This bill is one of many measures that the government has put forward to achieve that important goal. These include funding to help the supported employment sector transition to new wage arrangements as well as funding to help the sector become more independent, sustainable and robust.

Together with the improved payment scheme proposed in this bill, these additional measures demonstrate the government's commitment to help to ensure all forms of employment for people with disability are widely available and secure for the future.

Debate adjourned.