Jacqui Lambie (Tasmania, Independent) Share this | Hansard source

I rise today to oppose the Business Services Wage Assessment Payment Scheme Bill 2014. It is just another attack on vulnerable Australians from this government. We have seen a total disregard for the lives of people who do not have much, who work hard and who suffer against the odds because they are unemployed, because they are carers, because they are sick or because they have a disability. This has to stop.

In this case, it is very clear that we have a group of over 10,000 Australians who have worked hard in their jobs for many years and were not paid their fair wages because of discrimination. They work in factories, in offices and in gardening businesses, all over Australia. Some people earn as little as $1 or $2 an hour. These are the lowest wages in Australia. More than 10,000 workers with intellectual disabilities have been paid under a tool called the Business Services Wage Assessment Tool, the BSWAT, for more than 10 years. BSWAT is a tool that was created by, and is still run by, the Commonwealth government. Under BSWAT workers with intellectual disabilities are paid a proportion of the minimum wage for their work, depending on how productive they are compared with a worker without a disability as well as how they respond to a series of abstract questions.

In 2012 the full Federal Court found that using BSWAT to calculate wages was unlawful, because it required workers with intellectual disabilities to answer questions instead of looking at how productive they were at their jobs. The Commonwealth then appealed to the High Court and lost that case. The result of this appeal made it clear what the courts think: that BSWAT discriminates against workers with intellectual disabilities. It also made it clear that the same ruling should apply to the other 10,000 workers in the same situation. However, instead of then stopping the use of BSWAT, the Commonwealth allowed workers to continue to suffer unlawful discrimination and did not offer a cent until now. Because of that, a class action is currently before the Federal Court seeking to enforce the Federal Court and High Court decisions for these employees and fairly compensate them for the work they have completed. This court case is seeking full back payment for all workers and is in line with the decision the courts have already made on this matter.

And now, instead of paying the workers what they are owed, the government has brought this legislation before the Senate. This legislation tells workers who have been unlawfully underpaid for many years that they should accept a payment of just half of what they are owed. Worse than that, it tells them that they need to give away their legal right to participate in the class action and seek full back payment for work already completed. If they take the payout, they lose half of what they are actually owed. That is not fair in anyone's book—certainly not mine. And it is un-Australian.

I am also very concerned about the government's proposal that would allow the Secretary of the Department of Social Services to appoint nominees. These nominees can make decisions for a worker with an intellectual disability, including the decision to accept an offer under the BSWAT Payment Scheme. Nominees can be appointed without the worker's consent and without the basic requirement that they act in the worker's best interests or following their wishes or their preferences. That is not a good process, and it leaves the Secretary in a serious conflict of interest. It leaves workers and their families without any power to decide their own future. This aspect of the bill is deeply concerning to me. It makes me think that the whole goal of this legislation is to trick workers out of their lost wages. The government does not need to pass legislation to make payments to these workers. There is nothing stopping the government from simply paying workers the back pay that they are owed. The only purpose of this legislation is to extinguish the legal rights of these workers and to bypass the courts. This is a manipulative attempt by the government to legislate around the courts and take advantage of a vulnerable group of Australians.

I will vote against this bill, because I think it is a crude attempt to take away the rights of vulnerable people and amounts to the government stealing half of what the workers are owed. These workers are the people in our society who can least afford this attack. They are sons and daughters and brothers and sisters. They have mums and dads and are important members of our communities. We need to support them. The bill is also inconsistent with the National Disability Insurance Scheme, which is about protecting the rights of people with disabilities and ensuring that they have choice and control over their circumstances. I will always stand up and do what is right, and I will demand that the other senators here do the same, including those from the ALP and the Greens and other crossbenchers. I hope that all Senators will join me in rejecting this bill and telling the government to sit down with workers and their families and resolve this back pay issue in a fair way so that every person gets their full entitlements, because that is the Australian way. The Senate should not be used as a way to steal wages from vulnerable people and to undermine the legal system and courts of our country. I oppose this bill and call on other senators to stand with me to protect the rights of workers with intellectual disabilities and reject this bill.