Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Payments) Share this | Link to 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.

Terri Butler (Griffith, Australian Labor Party) Share this | Link to this | Hansard source

In 1992, under a federal Labor government, the Disability Discrimination Act was made law. That is a piece of legislation that is very important because it is about dignity for people with a disability and ending discrimination against them. Twenty years later, in 2012, in a decision brought under that legislation the full court of the Federal Court found that the Business Services Wage Assessment Tool—the tool that is the subject of this bill, the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016—was discriminatory and unlawfully discriminated against people with an intellectual disability, because it assessed competency as well as productivity. Of course, the consequence of that for people with an intellectual disability was that, though their productivity, their output, might be exactly the same as someone without the same disability, under that tool, they were able to be paid less. I am informed that the administration of that tool resulted in some workers with an intellectual disability being paid as little as 99c per hour.

Following on from that full court of the Federal Court decision, my friends and colleagues at my old firm, Maurice Blackburn, decided to commence a class action—and I want to say a bit about that. When my friend, Josh Bornstein, mentioned to me that he intended to pursue a class action in relation to disabled workers, my initial reaction was to see the possibilities not just for the class action and the workers who had suffered discrimination who might be able to get access to justice because of the existence of the class action rules when otherwise they could not individually afford to bring proceedings but also because of the cultural change that the prospect of class actions can bring. That is of course to remind people in our community that, though individually complainants might not have much power, collectively they have a lot of power—and that can change behaviour.

Obviously I was not involved in the class action, given I was leaving at the time to do something else, but I was very interested to watch the progress of the class action in relation to the BSWAT. I was also very pleased that a woman I recruited to that firm, Ms Kelly Thomas, ended up being one of the solicitors on the matter. She is a very talented solicitor and one of my best hires in a long period in the law. She and Josh wrote to me last week or the week before about the class action and about the resolution to which effect is to be given by this legislation.

In 2014 a piece of legislation was brought forward by the Abbott government, and now Turnbull government, in relation to this claim. We did not support that legislation. There were a few reasons that we did not support that legislation. Firstly, it was going to give people only 50 per cent of the value of their wages. Imagine being told that you were entitled to back pay only to find that you were only going to get half of it. But, probably more importantly, it was going to take away people's ability to pursue justice through the courts. We were very concerned about that legislation because it was aimed at extinguishing rights without compensating for the loss of those rights. In this House, people would not be keen to support the sort of legislation that says to disabled people, 'All right, you have been exploited, you have been underpaid, but take half of what you are worth and promise not to sue the Commonwealth for anything else.'

Of course, things have now changed. What has changed is that there has been a long period of negotiation and resolution in the intervening period. My own view, having been a lawyer, is that it is always best to seek to resolve litigation by agreement, where possible, because that is the only way the parties get to have control over their destinies. If you are unable to resolve your litigation, what you are really doing is putting your destiny into the hands of a third person, the judge. I do encourage parties to, where possible, seek to resolve by agreement for that reason. It is also a more efficient use of taxpayer resources if parties can find a way to reach agreement between themselves rather than using court time, and it is generally safer for parties not to have to bear the costs and risks of litigation if possible. Settlement is generally the best way to resolve litigation.

Determination by a court is usually not the best way to resolve litigation. And so it is here: a class of people—real people with intellectual disabilities—have been put in a position of controlling their own destiny by deciding whether to agree to a resolution, and we are now seeing that resolution being given effect in this legislation. I would make the point that they did so via the vehicle of a class action. Not everyone loves a class action, and not everyone loves class-action law firms. But I would say this: in this country, where access to justice is a serious problem and where we have had a Productivity Commission report which recognises that there are plenty of people out there who just cannot have access to the courts because they cannot afford to do so, vehicles by which people can have access to justice are important. A class action is one of those vehicles.

We should think very carefully about this question: do we want to live in a country where the only people who can get access to justice are those who are wealthy enough to pay for private lawyers? Or do we want to live in a country where the people who can get access to the court system are people who need to access the court system? Of course, I am not just talking about a class action—that is one vehicle. Another very important component of access to justice—and there are many—and probably the most important one for people without the means to hire private lawyers, is community legal centres and legal aid commissions. It is unfortunate that this government has, for example, cut tens of millions of dollars from community legal centres and legal aid commissions since coming to office, including Aboriginal and Torres Strait Islander family violence legal centres. It is not only a terrible cut at a time when, because of the work being done, people are more and more willing to seek help in matters of family violence—and those legal services do other things as well—but a direct attack on access to justice at a time when access to justice is the focus of national attention through the Productivity Commission inquiry and report. As I said, there are many ways of obtaining access to justice. Class actions are one. Legal aid commissions and community legal centres are others. And pro bono work by private firms certainly ought not be disregarded; it is a very important component of our legal system.

This a case that relates to a very particular type of class action that centres on claims that arise in relation to contraventions of the Disability Discrimination Act. Given that action have arisen, and given that the parties have had the opportunity of mediation and settlement discussions, it is now a matter of respect that we should support this bill. This is a settlement that the people who are claimants themselves, the people with intellectual disability who are owed money, are seeking to have endorsed. As the member for Jagajaga said, in the event that this bill is passed, the parties will be able to go back to the Federal Court for endorsement of the resolution. We should respect the decision that they have made in relation to agreeing to this settlement, and we should support this bill. This bill is definitely a more favourable bill than the previous bill, the 2014 bill. It is a bill with a back-payment of 70 per cent of the amount underpaid rather than 50 per cent. There will be indexation and there are other positive aspects of this bill compared with the previous bill.

The matters of fact, the merits of the settlement, are important for us to consider. But, most importantly, we should consider the wishes of the people for whom the class action was brought, the people who will receive the benefits of that class action. That is something that I am very keen to do. We should also recall that this is just one incident of a much broader imperative that we have as a parliament to recognise the needs of people with a disability. There are so many things you could talk about in that context. The shadow minister spoke about the National Disability Insurance Scheme, which is a signature achievement of the last Labor government, including the current Leader of the Opposition in his role in the last Labor government. I am certainly looking forward to seeing the NDIS rollout in my own area in Brisbane.

But there is always more to be done. As the shadow minister said, we certainly need to reinvigorate the national disability strategy. In the context of this issue, I also want to mention for the benefit of the House the work that is being done in my own part of the world in the Australian Labor Party in Queensland. A friend of mine, Brad Sparrow, has set up a group called Labor Enabled. I certainly hope that group will continue to agitate for better pro-disability, pro-ability and pro-access policies internally within Labor and within the broader community. I am very pleased to say that they were kind enough to invite me to be the patron of that group, an opportunity that I took up without hesitation because I can see the opportunities for policy work, organising and community support that such a group can and will deliver.

But I digress. I rose to speak in favour of supporting this bill, because I think supporting this bill is the right thing to do on the merits of the settlement that has been reached in support of the people who would form part of the class that is the subject of the class action and to whom benefits from this bill would accrue. But, as I said, most importantly I did so as a matter of respect. People should be able to determine their own destinies in this world. When it comes to litigation like this we should respect the people for whom the action was brought and we should honour their wishes, and in supporting this bill we certainly would be doing that.

So, I commend the bill to the House. I thank you for the opportunity to speak, and I certainly hope that we will see more and more attention being paid to the needs of people with disabilities. I certainly have appreciated the opportunity to acknowledge the significance of the Disability Discrimination Act—that great Labor reform from 1992. I know there is much more to be done, but with continued focus and continued political will and effort we will continue to make Australia a better place for people with a disability.

Lisa Chesters (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

It is great for the people who are involved in this case that they will reach some settlement. It is also great that they will get fairer compensation as a result of the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016. A few people in my electorate have approached me about this issue and have raised it on several occasions. Bendigo is home to a number of our disability support agencies. Because we have a lack of businesses locally that are able or willing to engage people with a disability, a number of them have set up their enterprises to partner with their disability support services. These enterprises employ a number of people in my community who have a disability. Through no fault of their own—they thought they were doing it in good faith—they engaged people and, they acknowledge, have underpaid them. That is why this issue is very dear to the hearts of many people in my electorate, whether they work for these businesses or whether they are the businesses that employ them. So, they welcome this move to bring forward this payment. Of course, the workers said that they would have liked 100 per cent compensation, but understand that when you are involved in negotiations, when you reach a settlement, 70 per cent is better than a drawn out case.

So, we welcome the settlement of the class action between the supported employees and the Commonwealth. A number of organisations have been very worried about what the future would be, and I will touch on why the government needs to settle the uncertainty by bringing forward a new non-discriminatory wage tool as soon as possible for the sector. They are hoping they can draw a line in the sand on this issue and move forward. This settlement means that thousands of workers with a disability whose wages are being paid using the BSWAT, a discriminatory wage assessment tool, will now have fairer compensation for the wages they were denied. And it is hard, using this particular tool. I have had people come and say that they have not had an assessment done in a while. I have had people say that they believe their competency level and ability are higher than what the agency has rated them as having. These are workers, at the end of the day. They are very proud of the work they do and should not be discriminated against just because they have a disability.

We are pleased that the parties have finally come to an arrangement. It is disappointing, however, that it has taken so long to come to this point. We opposed this legislation when it first came into the House, because the people at the very centre of this issue were not happy with the 50 per cent mark. And you can understand why, which is why we are taking their guidance in supporting this bill today. Too often people with a disability do not have a strong enough voice, whether in our community or in law. That is why it is so important that people in this place ensure that people with disability do have a strong voice and that they are represented.

It demonstrates again how this government failed to listen to people with a disability and their advocates the first time around. They failed to listen to the peak disability organisations, and the also failed to listen to what the many enterprises, like the ones I mentioned in my electorate, were saying about this particular case. It is only now that we have agreement across the board that we on this side are ready to support it.

I will just give the House a bit of an outline of the great work going on in some of the organisations in my part of the world, starting with Radius Disability Services. They have just opened an exciting retail and hospitality emporium, right in the heart of town. They took over the old Toyworld building and have started to renovate that space. They are focusing on retail and hospitality. Their retail side is basically vintage clothing; they screen-print their own designs and they also make their own clothing. Since their doors opened they have been going quite well. It is an enterprise in which, as you can imagine, they have to sell a lot of shirts that they make in order to break even, so the support they get from the community for this enterprise is welcome. It is also one of the supported-employee locations where they are desperately waiting for the government to finalise the new tool so that they can make sure that their business remains profitable into the future.

The other side of the business, apart from the clothing side, is a hospitality service—catering that they are able to do in the local community as well as hospitality work, such as working in cafes. Through the establishment of this emporium they are training a group of workers, and some of them are applying for work in our local cafe industry. It is wonderful to see people who once might have been written off by our community—saying they could not gain the skills needed to work in hospitality—having, through being involved in Radius, new skills and the ability to go on to further employment. Yes, the training program may have taken a little bit longer than for somebody who goes straight into the hospitality industry, but that is what Radius has been able to offer them.

Another organisation in my part of the world that has a number of small businesses providing supported employees an opportunity to work is Bendigo Access Employment. They have a number of contracts, from environmental services, car services and management services to their PepperGreen Farm site. This is a unique site. It used to be the Chinese Garden markets—until the 1950s. Later, it was turned into a plant nursery, only to be passed on to become the PepperGreen Farm site. At this particular site, supported employees work with their supervisors on their horticultural garden, growing local produce. That produce is for sale—you can buy your PepperGreen Farm produce on Thursdays.

They have now established a kitchen, which is producing meals. This is another catering opportunity, offering 'meals on wheels' for people who may be at home, who may be alone or who may not want to cook. So they are growing their business. Again, this is giving people with a disability an opportunity within this enterprise. The community park has horticulture, environmental education and heritage awareness, and it is operated under the umbrella of Bendigo Access Employment, delivering a number of employment initiatives.

One thing I will say about our supported employee enterprises, our not-for-profit enterprises that rely on supported employee labour, is that they are creating opportunities for a group of workers who would otherwise miss out. They need our support in making sure the wage assessment tool is fair and in accordance with our obligations regarding to workers' rights. They need the acknowledgement that running these enterprises is not like being on the open market. It is more expensive to train people. It is more expensive to make sure that they have the equipment and the appropriate places than it is for private enterprises, so there is a role for government to play in supporting these businesses to make sure that they are meeting the benchmarks required.

I hope that a number of these organisations will be successful in our first round of Stronger Communities grants. Unfortunately, in Bendigo, we are still waiting for many of our grants to be approved. Our disability enterprises, such as Radius and Bendigo Access Employment, have all applied. They have passed the first stage of the process to receive funding to ensure that they have the most up-to-date capital equipment that they need to continue growing their businesses.

We also have the Kyneton and Castlemaine copy centres that do a lot of work for local businesses and schools. At a copy centre, as the name says, they do the printing and the photocopying. The last time I was out at Castlemaine they explained to me that there is a waiting list for people to use the photocopier. They enjoy doing the photocopying and the folding. In the upcoming election, I might need to remember that we have a group of people in the south of the electorate who are very keen to do those jobs.

I am just highlighting how these are people who go to work, who enjoy their work and who just want a fair pay for a fair day's work. It comes back to the key point: whilst this bill is about ensuring that people who have been underpaid get some kind of compensation, the government needs to get on with the job of finalising the new non-discrimination wage tool so that future supported employees are not underpaid and are not left with so much uncertainty. It is also so important for their organisations that they know they are paying people the right rate of pay.

I would also call on the government to make sure that there are clear rules and guidelines about where and when you can apply this tool. In one particular case, a business in Bendigo that was doing traffic management, came to see me because they had lost their entire contract to a business, based in Melbourne, that was coming up to Bendigo to do the work. They were paying supported employees as little as $2 an hour. The Bendigo business said: 'We cannot compete with that. We are paying people award wages and this business, which claims to be a disability support organisation and has people on supported employee wages, is paying them $2 an hour.'

When we are in the space of workers' rights, when we are in the space of wages, when we are in a contracting industry, like traffic management, where wage bills can be the competitive edge, we need to make sure that this tool is not being used inappropriately. Where it can be demonstrated that it is, we need to make sure that the employer is held to task and that they are not misusing this tool and underpaying people, deliberately, in order to win contracts. It is not the only place that it has happened. It has also happened in the cleaning and maintaining of local government cars. The local government stepped in to say: 'This is not appropriate. If person A gets paid X wages, person B should get paid X wages.'

The whole point of the tool is to fairly assess people in their capacity to do a job. That is part of the problem, in this space, when it comes to Australians with a disability. We need to give people with a disability more of an opportunity to gain meaningful employment. In Australian workplaces, we have one of the lowest rates of people with a disability working. It is the role of government to help support people with a disability gain employment—not only to help businesses to hire people but also to help change the culture.

I can remember that when my offices were renovated in Bendigo we were hoping to have somebody from Scope come in and volunteer with us. We were hoping to offer work to somebody who is in a chair. But when we put forward the plans to have our offices renovated, what was knocked back was having a disabled toilet installed. It makes it very hard for me as a local federal member to employ somebody who may need a disabled toilet, because it was knocked back. The Department of Parliamentary Services said that the budget just did not stretch far enough. So that is just an example of how if, as a parliament, we want to be a model employer, we need to make sure that we have appropriate facilities for people with a disability.

It also goes beyond just government; it also means that we need to challenge employers about who they give a job to. We need to make sure that there is not so much a cash incentive on the table but that we are actually rewarding and encouraging best practice—making sure we are giving people who might be differently-abled the opportunity.

I met a fantastic young man when I was out at Radius Enterprises. They have a recycling and environmental service where they drive around in empty trucks to where people have donated goodwill items in clothing bins. They then load up the trucks and send them to Melbourne. Basically, the old clothes are turned into new product. He had gone from being a supported employee to being on the books as a full-time employee, as a supervisor. He said that when he was younger he was just written off, 'I still don't quite know what disability I have, but I was just kind of judged.' Now, he is running the service. It is a great success story and we need more of those.

We need our government to get serious and to finalise the new non-discriminatory wage tool so that more people have an opportunity.

Stephen Jones (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Regional Development and Infrastructure) Share this | Link to this | Hansard source

When this Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016 came before the parliament I was keen to speak on it. I was keen to scrutinise the legislation and I can say that I stand here to support it.

Before entering this place I worked in the disability sector for many years, with people with disabilities—both physical disabilities and children with intellectual disabilities, so I have some affinity with the subject matter. I also worked as an industrial and employment lawyer, so the issues that are being grappled with in this legislation and the course of events which led to it are well known to me.

It concerns, of course, the employment of people with a disability and it grapples with the issue of how we pay them a fair and decent wage. The Business Services Wage Assessment Tool was a tool used to determine the pro rata wages of supported employees. In essence, the benchmark is the award wage and the tool was used to assess the capacity of that worker, effectively discounting the full-time award wage against the assessment tool.

Of course, the matter was subject to litigation in the Federal Court and eventually found itself before the full court of the Federal Court. In December 2012 the full court of the Federal Court found that the tool was discriminatory. His honour, Justice Buchanan found:

The basic defect in the use of BSWAT is that it reduces wages to which intellectually disabled workers would otherwise be entitled by reference to considerations which do not bear upon the work that they actually do.

That was in the case of Nojin and Prior in the Commonwealth. The Commonwealth, the respondent in that matter, appealed and in May 2013 was refused special leave by the High. Court. In reaching her conclusion, Justice Crennan said:

The Full Court of the Federal Court, by a majority, concluded that the use of the BSWAT disadvantaged intellectually disabled persons. Although it was widely used, it was not reasonable. … The unchallenged expert evidence was that the BSWAT produced a differential effect for intellectually disabled persons and reduced their score. We see no reason to doubt the conclusions of the Full Court.

Well, that is the case and those are the circumstances which led to this matter being brought before the parliament today.

Of course, it is not for the first time, because in 2014 the government passed legislation which put in place a payment scheme for those who were affected by the legislation. People with a disability would be entitled to a payment from a fund administered by the Commonwealth. Unfortunately, the payments would have been limited to 50 per cent of the amount the worker would have been paid had the productivity element been used—that is, what should have been done.

Labor opposed the legislation for a number of reasons. Firstly, on its face, we believe that the 50 per cent payment in compensation was insufficient. We reached this conclusion after having received representations from many of the clients, advocate groups and litigants who were then in negotiations with the Commonwealth. There is also a second principle involved in matters such as this, and it is this: the Commonwealth parliament should be very slow indeed to pass legislation which effectively distinguishes the rights of parties who are engaged in a litigation, particularly when they are negotiating between themselves for the settlement of that litigation. When the Commonwealth does that it effectively inserts itself in between those parties and comes down on one side or the other of them, distinguishing and affecting rights. Of course, when one of those parties to that dispute is the Commonwealth itself you have to reach the conclusion that it is an improper use of the power of the state.

We take a different view of the legislation that is before the House today. The bill gives effect to a settlement that was reached in December last year. The parties have agreed to a deal that provides a better deal for the supported wage employees. They will receive compensation worth 70 per cent of the alleged loss under the Commonwealth payment scheme. This is an increase of 20 per cent of what they would have received under the 2014 bill. People who have already received a payment under the scheme will automatically receive a top-up payment to reflect the increased payments available under the settlement. They will not have to make any further applications to receive this payment.

Labor has always supported the establishment of a payment scheme for supported employees involved in this matter. We believe that it is essential to the resolution of the case. I have received many representations from Australian disability employment enterprises within my electorate. In fact, before coming down to speak this afternoon I spoke to Mr Ross Johnson of Flagstaff Group and discussed with him his views of the legislation and the litigation which led to it. He is keen to see the matter resolved and he is keen to see the legislation passed before the parliament, but he makes the point that it only deals with the current stock of litigants and those who may wish to join the class. It does not go to the issue of the discriminatory tool that led to the litigation in the first place. That is the unresolved matter, and it is my view and the view of the disability employment enterprises that I have spoken to that this matter needs to be resolved posthaste.

I am aware that the matter is being dealt with at an award level and has been referred to Deputy President Anna Booth in Fair Work Australia and that a conciliation process is underway. I argue that that is the best way to deal with this matter. With complex issues a final settlement is one that is best reached as the result of consent between all of the parties. That way we can be assured that the tool that is used into the future not only has no evidence of any of the discriminatory matters which have so afflicted this tool but also has the full support and understanding of the parties who are required to use it.

I have been in receipt of a number of piece of correspondence and other material as this matter has progressed before the parliament. In some of that material there has been an in my view unfortunate suggestion that there is no place for Australian disability enterprises in modern Australia. I think this is, frankly, an unsophisticated approach to the matter.

I support the maximisation of people with disabilities working in open employment in the community alongside you, I or anybody else who is working in any workplace around the country. I think that should be the goal of every member in this place. But I am familiar with the work of a number of the ADEs in my electorate. I single out The Flagstaff Group and Greenacres Employment Solutions. I spent a fair bit of time with them over the years. I know the people who work there. I know the supervisors. I know the management committee. I understand that it is unrealistic to think that many—not all—of the people who are working in these enterprises would be working in open employment if that were to be the only employment.

It is not just because of the capacities of these people, but we have to be realistic. When the unemployment rate in the electorate that I represent is often two per cent and sometimes three per cent above the national average—and even higher; sometimes three and four times the national average for people who do not have higher qualifications—we have to be cognisant of this and understand that ADEs play a critical role not only in providing employment but also in providing a social space for people with disabilities and respite for their families.

This is not meaningless work. This is not digging holes and filling them back in. Flagstaff employment, an ADE in Unanderra in my electorate, has a range of businesses from laundry services to coffee roasting to packaging. They run a printing business. They run the staff cafe out at BlueScope steelworks just down the road. They run a paper and cardboard recycling business as well. I have moved among the workers who work in these workplaces. They are doing a great job. It is meaningful employment, and they savour every day that they get to go to work and engage in it. I will make the same comments about the other ADEs in my electorate.

It behoves us to support this legislation but also to encourage those parties who are currently in conciliation before Fair Work Australia. Anna Booth, whom I know to be a very skilled conciliator of long standing and great respect amongst all the parties, will do all things necessary to ensure that a new tool is put in place so that we are not faced with dealing with similar legislation such as this in a future parliament.

Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Link to this | Hansard source

I am pleased to offer a contribution to this debate. In the electorate of Kingsford Smith there are a number of Australian disability enterprises, or ADEs, that do a fantastic job providing employment opportunities for people in our community living with disabilities. This has been an issue that has gone on for quite a while, and there has been a degree of uncertainty in these businesses for parents and people who work in these businesses regarding their wages and conditions into the future.

The purpose of the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016 is to provide some of that certainty, to amend the Business Services Wage Assessment Tool Payment Scheme Act 2015 to increase one-off payments from 50 per cent to 70 per cent of the difference between the actual wage paid to an eligible person and the amount they would have been paid had the business services wage assessment tool—BSWAT—productivity-only component been applied. It also provides a top-up payment for persons who have already received a 50 per cent payment under the BSWAT payments scheme. It removes the current compulsory requirement to obtain legal advice before any payments are made. It extends all relevant scheme dates by 12 months, clarifies certain administrative arrangements and enables a deceased person's legal representative to engage with the payments scheme on their behalf.

The catalyst for this bill and the reforms that result comes from the bravery of two men with disabilities who in 2012 were successful in challenging the fairness of their wage, which under the old payments scheme was less than $4 an hour. That case went all the way to the Federal Court, and the Federal Court had a look at the BSWAT system and found that it unlawfully discriminated against people with intellectual disability, because it assessed competency as well as productivity. This meant that employees with physical disabilities could receive a higher BSWAT score than someone with an intellectual disability and thus receive a higher wage because of their lack of intellectual impairment. The court found that that was discrimination and breached the nation's antidiscrimination legislation. Following this case, a class action was launched, on behalf of supported employees, seeking similar compensation to those that had that outcome in that case.

In 2014 the government passed legislation to establish a scheme to compensate supported employees with intellectual disability who were paid wages using the discriminatory BSWAT tool. Eligible people were able to receive a payment amount worth 50 per cent of the amount the worker would have been paid had productivity element of the BSWAT tool only been used for the purposes of calculation of their wage.

Labor opposed the original legislation because it denied people with disability the legal right to pursue further compensation from the Commonwealth through the courts. When the original legislation was before the parliament, Labor unsuccessfully moved amendments that would allow people with disability to pursue further legal action, even if they accepted a 50 per cent payment under the scheme.

While this bill still precludes people from taking future legal action if they accept payment under the scheme, this is common with the resolution of legal claims. Importantly, people with disability have now been able to exercise their legal rights through the class action. This bill gives effect to the settlement reached in December 2015 between the Commonwealth and the applicant in the class action, proceeding on the basis that eligible supported employees receive compensation worth 70 per cent of the alleged loss under the Commonwealth's payment scheme, instead of 50 per cent. Labor welcomes the outcome of the class action, which has brought about a greater focus on ensuring a fairer wage deal for people with disability. And, now that people with disability have reached a settlement to finally receive wage justice, we support the legislation to give effect to the terms of the settlement.

In relation to this matter I, and my Labor colleagues, have always said and been guided by the wishes and views of the stakeholders in the disability sector—by the people living with disability, by their carers and loved ones and by the people advocating on their behalf. I have a number of ADEs in my electorate and a number of organisations that provide respite services for people living with disability and the families and carers. I value and cherish their feedback on important reforms such as this, and that has gone into the decision I have made in respect of this bill. These are the people who know best the challenges and the many, many skills of people with disability. Labor respects and acknowledges their wonderful work in helping to reach this outcome.

Funded by the Department of Social Services, Australian disability enterprises seek to employ and support people with disability in commercial environments. Currently, there are around 20,000 people with moderate to severe disability employed by ADEs, and they commonly undertake work including packaging, assembly, production, recycling, screen printing, plant nursery, garden maintenance, landscaping, cleaning services, laundry services and food services.

As I have mentioned, I have a number of these ADEs in my electorate. One of them was a pacesetter in many respects for these types of businesses—and that is Windgap Foundation Limited. Led by CEO Serhat Oguz and COO Hercules Kotsornithis, Windgap has been supporting people with disability through residential and day program services and work support since its inception in 1953. It was one of the first such businesses operating in this space. Windgap has a terrific reputation for increasing quality of life for members while doing great work to promote the importance of a truly inclusive society that embraces the ability of those living with disability. I have been delighted to visit the wonderful people of Windgap on a number of occasions. In November last year I was honoured to bestow upon the Windgap choir, which is well known in our community, a Kingsford Smith community service award for their work in volunteering at community functions and events and for their outstanding service to our community. I am tremendously proud to have such a wonderful organisation in our community. I am thankful for the work they do.

I say to businesses in our community: consider Windgap and other ADEs that do this sort of work when you are next looking at contracts, particularly around those services I mentioned earlier, because you do get great quality employees or work from ADEs and you are doing a great thing for our community and our nation.

We support the passage of this bill. We do call on the government to work quickly to fulfil its promise to develop and put into operation a new non-discriminatory wage assessment tool. As I mentioned earlier, this legislation today goes part of the way to resolving the uncertainty that still exists for ADEs and their employees and families and friends throughout the country.

The government does need to get on with the job of avoiding further uncertainty to ensure that people living with a disability and working with a disability can do so with confidence and with certainty about receiving a fair day's pay for a fair day's work.

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

We have before us the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016. In providing a summary to the second reading debate I would like to thank all of the members opposite for their various contributions. I particularly want to thank the member for Jagajaga.

The policy space that is pertaining to ADEs has several related but nevertheless distinct and severable issues. They are presently until this point running in parallel. This bill resolves one of those issues. Centrally, in resolving litigious issues—about which I will speak in a moment—this bill is an important part of establishing certainty and continuity in what has been a very crowded policy space in which a number of issues running parallel have created a degree of uncertainty, which is not in the best interests of those people who are and have been employed in Australian disability enterprises.

I will further note that I have listened to the member for Jagajaga, and she has raised some of the related issues in this area. I understand and appreciate her concern on those issues. I would, again, like to put forward my appreciation for her cooperation with respect to the passage of this bill, and note, again, that a primary and substantial virtue of this bill is in resolving present litigation that in itself provides a very substantial source of certainty in what is a very busy, crowded and uncertain policy space. This is the foundation from which other issues can then be resolved. I will go as far as to say that it is almost a necessary condition to the resolving of all of the other parallel issues that have been mentioned in the second reading debate with respect to Australian disability enterprises.

The bill itself gives effect to the settlement agreement between the Commonwealth and the applicant in the representative proceedings in the Federal Court of Australia. Both the Commonwealth and the applicant accept that the settlement agreement is a fair and equitable outcome. The bill delivers on the government's priority to ensure that all Australians who can work and want to work have access to employment opportunities. Australian disability enterprises—or ADEs, as I will refer to them, in shorthand, in this short speech—play an essential role in providing these opportunities for Australians with a disability. ADEs provide supported employment to Australians with a disability who have significant needs, ensuring that they can continue working.

The Commonwealth's payment scheme helps to provide certainty to supported employees that their employers will not close because of concerns about employers' perceived liability for discrimination following the Federal Court decision, in 2012, in the matter of Nojin v the Commonwealth of Australia [2012] FCAFC 192. The improvements to the payment scheme provided for in this bill will increase payments to every eligible supported employee, provide certainty for employers, give eligible supported employees more time to register and apply for the scheme, and remove several impediments to providing payments quickly. The bill achieves this while maintaining the protections necessary to ensure people have choice and control, including appointment of nominees and review mechanisms.

This bill increases the payment under the scheme from 50 per cent to 70 per cent of the difference between the wages that employees were paid and the wages they would have been paid if they had been assessed under a productivity-only tool. The bill preserves the benefits of the payment scheme, including: making payments under the scheme eligible for a lump sum in arrears tax offset; ensuring a payment under the scheme does not count as income, which reduces the risk of affecting an individual's social security entitlements; and indexing payments under the scheme to the CPI rate, each year, in the period relating to payment amounts. The parties to the representative proceedings have agreed that in combination with these modifications the change to 70 per cent is a fair outcome for the relevant eligible supported employees.

Advocates for supported employees, such as the AED Legal Centre and People with Disability Australia, also agree that the increased payment amount is just and a win for employees with a disability. This is a win not only for the class represented in the representative proceedings but also for everyone currently eligible for the scheme. Although the amendments in this bill will give effect to the settlement agreement, the Commonwealth will ensure that everyone currently eligible for the scheme will benefit from the increased proposed payment. The bill will also allow a deceased person's legal personal representative to engage with the payment scheme on their behalf. Any money that would have been paid to the person will now be able to be paid to the person's estate. The bill will also ensure that people who have already received a payment under the scheme will benefit from the increased payment by ensuring that they receive a top-up. Top-ups will be automatic, and people will not have to make an additional application or provide further information to the government.

Many eligible supported employees have not yet registered for the scheme. Under the current act, eligible supported employees will only be paid if they register for the scheme by 1 May 2016. This bill extends the dates for registering, applying for and accepting the payments from the payment scheme by a further 12 months so that people have more time to register for the scheme and submit applications.

As has been described, the bill amends the legal advice provision to provide that the requirement for legal advice is voluntary, rather than mandatory. In effect, this removes a current impediment to participants receiving their payments quickly, especially for those who receive small offers of payment. Access to independent legal advice and financial counselling will continue to be funded under the scheme by the Commonwealth, and the government remains committed to ensuring people are able to make informed choices about accepting a payment offer.

When the government established the payment scheme, it was committed to providing choice and control for supported employees and to providing an alternative to the representative proceedings. This bill will improve the payment scheme for those eligible supported employees who choose to participate in the scheme. Once the bill is passed by the parliament and the terms of the settlement are accepted by the court, the proceedings will be dismissed. All parties in the representative proceedings share the purpose that this bill is passed and that the Commonwealth is able to make payments based on the 70 per cent principle as soon as is practicable.

This bill demonstrates Australia's commitment to ensuring the most favourable outcome for supported employees, their families and carers. It is supported by all parties in the representative proceedings as well as by advocates of supported employees. It will provide a speedy and fair resolution for class members of the representative proceedings and provide improved outcomes, in the form of increased payments, for all eligible supported employees. This bill will remove any perceived liability from ADEs and provides ADEs and the 20,000 workers they support with greater certainty to operate into the future.

Combined with the many measures that the government has put forward to improve the independence and viability of the supported employment sector, this bill will play a very important role in helping people with intellectual disability enjoy the greater quality of life that Australians gain from employment. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.