Mitch Fifield (Victoria, Liberal Party, Manager of Government Business in the Senate) Share this | Hansard source

I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

BUSINESS SERVICES WAGE ASSESSMENT TOOL PAYMENT SCHEME AMENDMENT BILL 2016

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 (Duval-Comrie v the Commonwealth of Australia VID 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 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 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 Disability Discrimination Act 1992 (Cth), because their wages were assessed under the Business Services Wage Assessment Tool based on both their productivity and competency (Nojin v the Commonwealth of Australia [2012] FCAFC 192). The subsequent representative proceeding on behalf of a limited group of supported employees was also initiated and remains before the Federal Court of Australia. The applicant seeks compensation calculated on 100 per cent of the difference between the wages they were paid and the wages 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 Business Services Wage Assessment Tool payment scheme in 2015, which 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 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 significant Commonwealth support, Australian Disability Enterprises are commercial businesses employing people with disability who need support to stay in paid work. These supported employees are paid wages using revenue from the enterprises' business activities.

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 Business Services Wage Assessment Tool was one of these wage tools. It was developed by the Australian Government in consultation with stakeholders, and was first 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 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 it 'an outcome which sees wage justice for these employees'.

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. 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 even stopped hiring some or all supported employees. In these circumstances, the important benefits of supported employment for the employees, their families and carers would 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. This Bill extends the dates for registering, applying for, and accepting the payments from the payment scheme by 12 months so 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:

the applicant's ability to nominate a person to assist them with the payment scheme and be appointed as a nominee;

the ability for applicants to seek both internal and external reviews on decisions regarding eligibility and offers of payment;

extension of times for acceptance period and review period; and

the ability for applicants to seek financial counselling and legal advice, at the Commonwealth's expense.

Any person who has already received a payment under the Business Services Wage Assessment Tool payment scheme will receive a top-up to reflect the increased payments provided 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 be 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 Business Services Wage Assessment Tool.

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 Consumer Price Index rate 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 concerns, the scheme will have both internal and external review processes.

Self-evidently, any person previously 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 Business Services Wage Assessment Tool.

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 and 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.

TRADE LEGISLATION AMENDMENT BILL (NO. 1) 2016

The changes proposed in this Bill, the Trade Legislation Amendment Bill (No. 1) 2016, give effect to several key recommendations resulting from the 2015 Review of the Export Market Development Grants (EMDG) scheme conducted by Mr Michael Lee in the second half of last year, as well as making several minor policy and technical amendments designed to improve the operation of the Export Market Development Grants Act, and to make changes designed to deliver savings to align the scheme closer to its budget.

The changes proposed in this Bill also change the name of the Australian Trade Commission to the Australian Trade and Investment Commission.

EMDG celebrated its 40th anniversary last year, and since 1974, has been reviewed fifteen times, with ongoing bipartisan support for the Scheme. These reviews have consistently found the scheme to be an effective and efficient means of promoting the development of Australian exports under successive governments. The most recent review concluded that EMDG is effective in conferring a net benefit to the Australian economy and community, with increased economic activity across the economy and enhanced community welfare attributable to the scheme.

Given this background, and the many amendments that have been made over the years to reflect changing economic circumstances and budget decisions, major changes to the scheme are not warranted at this time. Indeed, in his 2015 review report to me in June last year, Mr Michael Lee stated, "My recommended changes to the scheme will add certainty and confidence to long-term planning for exporting businesses, governments and Austrade. I am recommending few significant changes to the scheme…." The changes proposed in the bill are designed to update and/or rationalise some of the provisions of the scheme, including some of the changes recommended in the 2015 Review.

Specifically, the purpose of this Bill is to amend the Export Market Development Grants Act 1997 (the Act):

to amend the definition of a grant year, which is currently up to 30 June 2016. In effect, this will make the scheme evergreen, so that the scheme can continue beyond that date and will remove the need for periodic re-authorisation which creates significant uncertainty with SME claimants, and undermines the purpose of the scheme. Given it has enjoyed over 40 years of bipartisan support, it is of little benefit to subject the scheme to 4-yearly sunset provisions

to remove the requirements that the independent review of the scheme be conducted for the specific purpose of making recommendations about the continuity of the scheme – not necessary given we are removing the sunset provisions - however we do see benefit in continuing to review the operation of the scheme from time to time, so the bill sets a date for the next review, and determines a process for later reviews

to remove communications as an eligible expenditure category to reflect the reduced cost of communications as a result of advances in technology

to place a limit of $15,000 on the free sample expenditure category. This cap will not be applied retrospectively to first-year claimants with a combined year 1 and 2 claim, who were not aware of this cap at the time they incurred their expenditure.

to describe the promotional literature or other advertising expenditure category as including literature or material in electronic or any other form

to repeal the provision for in-country travel expenses to be reimbursed, (other than air fares) and to change the amount of the daily allowance for overseas visits from $300 to $350

to add to the list of excluded expenses those relating to eligible promotional activities, things or eligible products that, in the opinion of the CEO of Austrade, may have had a detrimental impact on Australia's trade reputation

to permit Austrade to direct funds from other sources towards EMDG administration costs if required

I am introducing this bill at this time to enable it to come into effect on 1 July 2016, in order to provide exporters with certainty of the EMDG provisions applicable to their export promotions activities for the 2016-17 financial year and beyond.

At the same time I am also introducing an amendment to the Australian Trade Commission Act 1985 that will change the Commission's name to the Australian Trade and Investment Commission.

This name change will better reflect both the Austrade's significant role in promoting and attracting foreign investment and the priority the Government places on attracting foreign investment to secure Australia's future prosperity. Since becoming Australia's first Trade and Investment Minister, I have seen there is significant value in a regular dialogue with major investors in Australia, both foreign direct investors and portfolio investors. Australia has relied on foreign capital to grow since the days of the first fleet, and this continues to be the case. We are the world's 12th largest economy, with the 6th largest land mass, but with the 51st largest population. So we consistently generate more attractive investment opportunities than we can fund from our own pool of domestic savings, and the country is the wealthier for it, with higher paying jobs, by harnessing foreign investment to capitalise on and develop such opportunities. Note that I do not propose to change the corporate moniker 'Austrade' as this name and brand carries significant goodwill with business in Australia.

I commend the bill to the House.

I move:

That the debate be now adjourned.