Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Mental Health) Share this | Hansard source

I too want to join this debate on the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016. I do so on the back of some comments that were made yesterday in this place, where Senator Fifield, as a former minister with responsibility for this area, implied that it was only he and Senator Siewert who knew anything about the way the Business Services Wage Assessment Tool works. I say to Senator Fifield that I think Senator Moore has quite a bit of experience in dealing with this issue, but, without trying to self-promote, I think I have been around it for a while as well.

I want to join this debate to say that this is the end, hopefully, of a very long story that has its origins back in 2004, when I think it was Senator Patterson who was the Minister for Family and Community Services—and I am not saying I am blaming Senator Patterson by any stretch. There was a need for an assessment tool that would assists the about 20,000 people who work in disability enterprises in our country to ascertain their productivity, so the Business Services Wage Assessment Tool was born. The problem that we made then was that there was an assessment of the productivity of a worker but the one element that was added into that was that the worker had to prove that they themselves understood all of the occupational workplace health and safety requirements of that business workplace. That is the crux of what went wrong then. We have not resolved that, but today we are fixing up what has happened since 2004 to date.

When Mr Nojin and Mr Prior, supported by AED, the legal service in Victoria, took the matter to the Federal Court, initially they were not successful. But on appeal they were successful in making the case that there was discrimination in the way that this tool was employed to ascertain their productivity. In many respects I have a lot of sympathy with the case that was made. In what workplace in Australia is it the responsibility of the worker to prove that they understand the rules about occupational workplace health and safety? In what workplace in Australia is it not the responsibility of the employer to ensure that they have a safe workplace? That is the crux of what the matter was about. When Mr Nojin and Mr Prior won that case, there were implications.

Let us recall what we are talking about when we talk about Australian disability enterprises. Under the former Howard government ministry they were called business services. During that time, it was very hard for these business services to promote themselves. People did not know what they were, but the organisations were then called Australian disability enterprises, which allowed the community to better understand but also allowed those organisations to better promote the services that they offer. They are services that have been around in Australia's disability service system and employment system for a long time, and they are a growing and changing part of the employment system for people with quite severe intellectual and physical disabilities. About 20,000 people work in these places of employment. They range from packing businesses, mowing and garden maintenance. A lot of them run plant nurseries and screen printing. Laundry services are very popular. Food service is a growing area of activity. There are also some very creative business services or Australian disability enterprises in our country, and we can be very proud, in most part, of the work that they are doing across the country. I commend those that have been courageous and gone into the area of arts development. There is a wonderful place called Arts Access Victoria. They are doing amazing things with a tiny little bit of federal government support and supporting far more people than the little bit of funding that the Commonwealth, under both governments, give them.

As I said, it is an industrial instrument. It went to court and then it was beholden of the government back in 2013 to do something about it. At that time we were coming very close to the 2013 election and at that point a holding pattern was put in place to say that our government, as it was at the time, would begin the process of establishing an alternative wage assessment tool that would not offend the Disability Discrimination Act and that we would work with Australian disability enterprises to ensure that there would be some certainty about their ongoing activity.

There is some controversy in the country around the future of Australian disability enterprises, but it is my very strong view that they are very well supported and very desired by almost all of the people who work in these enterprises and their families. They provide a marvellous service for those who wish to work in these businesses, and I personally support them very strongly.

I commend Mr Nojin and Mr Prior for the work that they have done and for the leadership and the strength that they have shown in taking a matter through the court system on behalf of their coworkers. This is no easy task, as we all know, so they have done a great job.

There is another person that we need to commend very, very strongly in this whole process, and that is the former Disability Discrimination Commissioner, Graeme Innes, who assisted in negotiating between the disability sector, the workforce and their families, and government to find a solution to this complex and difficult situation that we all found ourselves in. It does go to show, though, why having a Disability Discrimination Act Commissioner is so essential to ensuring that people with disability in our country do have a voice and, in this case, a voice that can negotiate the very, very complex—historically complex, legally complex and emotionally complex—set of issues that was placed before us all.

This bill has appeared before us on a number of occasions, as senators will recall. But I am very pleased to say that Labor can now support it. We have been trying to negotiate, along with others, to get the government to a point where we have a set of principles that we as a nation can agree are just and fair. It is good to see that the elements of this bill are supported by the workers and their families, Australian disability enterprises themselves and, now, hopefully, the parliament.

I think the significant difference is that this bill increases the one-off payments from 50 per cent to 70 per cent of the difference between the actual wage paid to the eligible person and the amount they would have been paid had the tool productivity-only component been applied. So, if you look at the productivity-only component and remove the element of proving your understanding of the workplace health and safety rules, that is how you can get to an agreement about productivity.

The bill provides a top-up payment for persons who have already received a 50 per cent payment under the BSWAT Payment 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. It clarifies certain administrative arrangements and enables a deceased person's legal personal representative to engage with the payment scheme on their behalf. On that basis, Labor can agree to this bill.

I agree with Senator Moore's statements about the impact on the business arrangements of Australian disability enterprises. These are not highly profitable companies. They are organisations for which, if they turn a profit, that is a good year. They work hand-to-mouth. They struggle hard for a regularised business outcome. So any hit to their bottom line is terribly concerning. I do commend to the government a way forward that will ensure their longevity into the future.

Finally, I urge the government to continue to work, but much faster than it could be—this started back in 2013—to find another wage assessment tool that can be registered with the industrial relations commission, does not offend the Disability Discrimination Act and is fair to these 20,000 people who are working in ADEs in our country. Thank you.