Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

We have waited a while for these bills to come into the chamber. People may remember that these bills were actually referred to the Senate Community Affairs Committee several months ago now, for an absolutely urgent turnaround. Our committee had to have hearings on a very sensitive issue and prepare a report to come back to this place, and then the bills have sat. So, it is important to know that they have finally come in to the chamber for consideration.

This is a particularly complex area, and we understand that. The bills seek to establish a payment scheme for supported employees in Australian Disability Enterprises, or ADEs, who previously had their wages assessed under the Business Services Wage Assessment Tool, commonly known as BSWAT. We know that there are almost 200 ADEs across Australia, supporting more than 20,000 workers with disabilities. More than 90 per cent of these supported employees working in ADEs receive the disability support pension. We know that the disability support pension is also subject to budget processes and budget attacks in terms of the indexation ranges. So, the people who were caught up in the changes in relation to these particular issues are already concerned about a range of things to do with their livelihood, with their futures and with what will happen to them, and this fear is shared by their families.

Also, I truly believe, in the case of many people who run supported employment workplaces at the moment, that there is a great deal of care to ensure that employees working in these areas are well supported and that their rights are protected. I feel that that needs to be put on record, because within the discussion around the Community Affairs hearing there seemed to be some tension in terms of whether there was any sense of agreement about what would be the best form of employment and supported wage in this area. I think it is important to acknowledge that there is an acceptance that there must be support for the employees. Employees of the ADEs are paid at a pro rata wage determined by using a wage tool such as the one that we have here, the BSWAT. This particular tool was developed in 2003 and was designed to measure an employee's productivity and competence in performing a job. It has been used to determine the wages of about half of all workers in ADEs. We believe that that was around 10,000 people. It was developed in 2003 and has been used by successive coalition and Labor governments. So, this particular issue is owned by both sides of the chamber. This is not allocated to one side or the other.

In 2011 two employees very bravely challenged the BSWAT in the Federal Court of Australia. They were not seeking compensation for wages lost. They sought a declaration from the court—a declaration that they received. Both the Federal Court and the High Court determined that the tool, the BSWAT, indirectly discriminated against people with intellectual disability. This means that these Australian workers, some of the most vulnerable in our community, have been paid less than they should have been. We know that senators across this chamber understand that that is not just.

In April 2014, the Australian Human Rights Commission granted the Commonwealth a 12-month exemption for people who had had their wages assessed using this tool, while a new wage assessment tool is developed. Labor understands that the Australian Human Rights Commission did not take this decision lightly. The commission considered a number of issues in making is decision for an exemption, issues such as whether an exemption would progress the objects of the Disability Discrimination Act, the core legislation, objectives such as the elimination of discrimination against people with disabilities including in the area of employment, and to ensure that people with disability get equal treatment before the law, to ensure that people with disability have the same fundamental rights as the rest of the community. This argument came up consistently in the hearings we had on this piece of legislation.

Labor understands why the government has decided to establish the payment scheme through this bill today. However, when talking to disability stakeholders about the detail of the bill, Labor was very disappointed to learn that the government had not consulted with key stakeholders on these details of the bill. People with Disability Australia made this point in their submission to our inquiry:

People with Disability Australia has not been consulted by the Commonwealth on any element of the Bill, on any plans to transition away from the BSWAT as required by the Australian Human Rights Commission.

That is why Labor insisted on a Senate inquiry into the bill, so that the stakeholders had the opportunity to have their say on this complex issue. I want to be clear that Labor does support the government making a payment to people with intellectual disability who have had their wages assessed using the BSWAT. We support the concept of this payment as an interim measure while the government puts in place an appropriate non-discriminatory mechanism to ensure people receive fair pay. This additional funding will provide much-needed support while this matter is resolved. However, Labor cannot support the bill in its current form. The bill effectively extinguishes a person's legal rights and we do not think that is fair. The bill stipulates that a person ceases to be group member of any relevant representative proceeding at the time the acceptance of payment under the scheme is lodged. So it is an either/or and it is imposed on people who have great need for support in making decisions and who are ready, as we have said, some of the most disadvantaged in our community. Labor cannot support these provisions and we will be moving amendments to protect people's legal rights.

Labor also has concerns about the nominee provisions in the bill. These came directly from the evidence received in our committee. Labor will also be moving amendments so that the nominee rules better reflect the rules under the NDIS Act and are underpinned by the UN Convention on the Rights of Persons with Disability. I want to be clear that Labor's vision on this bill and the amendments we will move will not and must not jeopardise jobs. Of course Labor wants to ensure people with disability are supported to find and to keep work. Labor is also determined to see workers with a disability receive fair pay for the work they do. Ultimately, Labor wants government to sit down with people who have disability, with their supporters, with employers in the area and with relevant parties who have shown real interest, to resolve as soon as possible this complex matter, which has been before us for a period of time. It is important that all relevant parties come together and for the government to put in place a fair, long-term solution which is in the best interests of the workers with disabilities, employers and our community as a whole.

As I said, this bill stipulates that a person ceases to be a group member of any relevant representative proceeding if they accept payment under this scheme. In giving evidence to the current Senate inquiry into this bill, People with Disability Australia argued that:

… the Bill will exploit the vulnerable circumstances of people with intellectual disability who work in ADEs, by providing a payment in in exchange for their consent to maintain a system of wage determination which has been proven to discriminate against them.

Labor wants the bill amended to protect people's legal rights. Amendments do so in a way that ensures people cannot receive money under the government scheme and any money awarded by the courts at a future date. Our amendments give the Commonwealth the power to recover moneys paid under the scheme should an individual be rewarded a payment by the courts. This is effectively how the compensation rules operate under the Social Security Act. It is also akin to compensation arrangements set out in the NDIS Act.

I have also mentioned that Labor has some concerns with the nominee provisions of the bill—again, points made very clearly at our committee hearing. We want to see the principle of supported decision making at the very centre of this bill. We are concerned by any rules that do not ensure nominee provisions are used as a last resort. This was at the forefront of Labor's mind when we designed the nominee rules for the NDIS. These rules were designed with great consultation across the community, with people with disability, with legal firms and with a range of people who work in the field. We believe that the provisions under the NDIS Act are the model for where we should be working at the moment. Particularly when we have concurrent legislation impacting on many of the same people, there should be some kind of consistency.

The nominee rules under the NDIS Act are underpinned by those principles of supported decision making. These principles are reflected in the UN Convention on the Rights of Persons with Disability. That is why we will be moving amendments to ensure that the language around the nominee provisions in this bill reflect those in the NDIS Act. I think there is general acceptance that we as a community and as a parliament must do more to support people with disability into employment. That is it given name of so much of the work that has been done over the last years and also of numerous pieces of policies looking at the future.

When it comes to employment participation rates for people with disability, Australia ranks 21 out of 29 OECD countries. I am aware of the sensitivities and the worries about using OECD comparisons about making sure that they are a true reflection but I think in this case it is a reflector of exactly where we need to go to ensure that at this stage we are slow low with comparable countries in terms of real employment participation for people with disability, especially when you look at the correlation between disability and poverty. Again, these are points which came out consistently throughout the inquiry and also in the inquiry the Community Affairs Committee is currently doing looking at income inequality in Australia. These issues are to do with levels of disadvantage and stagnation within elements of disadvantage in the community. According to analysis by People with Disability Australia, an astonishing 45 per cent of people with disability live in or near poverty in our country. That is more than double the OECD average of 22 per cent. Australians know that all people with disability have the same right to a meaningful and productive life as those Australians who do not have disability. As we know, that is core to the principles of the development and the implementation of the NDIS. We need to ensure that people have opportunities, are treated with respect and feel valued in our community.

The National Disability Insurance Scheme was the most significant reform to disability services in the country's history. It should unlock the economic potential of thousands of people with disability who have been tragically cut out of the community and, in terms of employment, have been closed out of the workplace for so long. We know—and we are getting regular updates as the NDIS is being implemented—that there are now more than 7,000 Australians currently receiving support under the NDIS. We also introduced the National Disability Strategy, introduced the vision, delivered historical increases to the disability support pension and doubled Australian government funding for disability care and support under the National Disability Agreement. All these issues were linked with that core element of ensuring respect and support for people with disabilities, and most particularly the ability for people to have their own decision capability.

We know now that the recent budget looked at rights and payments to people with disabilities and their carers. They were deeply involved in discussions we had in the Senate Community Affairs Legislation Committee. People with disability, their families and their carers put forward their concerns about the impact the Business Services Wage Assessment Tool Payment Scheme Bill and the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill would have on the people for whom they care and members of their family. The community affairs inquiry was able to get information from various groups involved in the development of employment for people with disabilities. Through this process—and it was a necessary process because the Human Rights Commission and the court said that the government had to go back to the drawing board—we believe we were able to identify more of the issues and to ensure that the concerns were identified. We also believe that the amendments we are bringing forward actually make the legislation more reflective of the concerns that people brought to us.

We are particularly concerned that the time frame for the consideration of a new tool is rapidly ticking over. The process was that there needs to be an action taken. The Human Rights Commission handed down its 12-month exemption in April this year. The government is already well down the way through the exemption period. We were not convinced at our hearing that there had been a great deal of work done—or at least that could be shared with our committee—on the development of a new tool. That is particularly worrying as we now move into the Christmas-New Year period when there is a lack of engagement in many parts of the area. The Human Rights Commission and the Federal Court have said there should be a new operational tool by April 2015. I am not confident that this tool will be in place. I am certainly not confident that the people who came to us as a committee with their concerns about what was going on will be effectively engaged in the development of the new process. If they are not, we will be just reinforcing the faults of the previous system. We will not be listening to the people who have concerns; we will not be listening to what they think would be the best way of operating; we will not be treating them with respect. So the cycle will continue.

A tool was in place and it was challenged. The opportunity was there for the government to go back and work with groups to develop a new tool. If that is not done effectively, again we will have this division and this added concern. This will mean there is not that effective progress and that effective acknowledgement of the rights and opportunities for people with disabilities. I am disappointed, also, that Minister Fifield claimed that the Australian Human Rights Commission denied the Commonwealth's application for an exemption. That is just not true. The commission granted the Commonwealth a 12-month rather than a three-year exemption—

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

Denied our application, which was for three years.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

There was an exemption; it was just not for the three years that the government asked for. We do support and we deeply acknowledge the announcement by Senator Fifield on 21 August of $173 million to support ADEs in the transition and the development of a new wages tool. That is the work that needs to be done. That is what the people in this area want and that is the only way that we will be able to move forward. So we welcome the announcement from the government of that allocation.

We, as I said, will be opposing the legislation in its current form. We will be moving amendments to leave intact people's rights to pursue legal redress whilst ensuring people cannot receive money from the government's payment scheme as well as any money awarded by the courts. We hope that the government and the crossbench will support Labor's amendments to the bill. In doing so, we urge the government to go ahead with the payment scheme but not by forcing people to forgo their legal rights. There is nothing stopping the government from sitting down with people with disability, employers and relevant parties. There are a number who are engaged, are knowledgeable and want to make sure that we come up with something that works. We believe that is in the best interests of workers with disabilities, their employers, their families and the community.

The government must get on with the very important job of putting in place a fair wage assessment process. The government must ensure wage-setting arrangements are non-discriminatory and fair for all people with disability. We know that the best way of doing that is by working very closely with the disability sector and also with the discrimination commission. If the discrimination commission actually identified that the previous scheme was discriminatory, it would seem fair to think that when developing a new tool we would work to see whether we could come up with a tool that is not discriminatory.

I want to put on record my appreciation of the people who came, again at extraordinary short notice, to talk with our committee about their concerns and also to look at putting in place something that will work into the future. Again, the thing that is most positive about this experience—as is most often the case in this area—is the general commitment of people to ensure that we do get a system that works, is non-discriminatory and will give people with disabilities options for employment.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I wish to acknowledge in the advisers gallery the presence of Miles Maguire, a school student from Sydney who is using part of his school holidays to work with Senator Fierravanti-Wells to find out more about how the Senate operates. I hope after your week in the Senate you are more not less engaged.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to make a contribution to the debate on the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendment) Bill 2014. The Greens are deeply concerned about these bills and oppose them not because we do not think this is an important issue; we do not think the measures contained in the legislation are fair to those in the workforce who have a disability, particularly those who have an intellectual disability and who have been underpaid for a consistent period of time. This issue has been on the agenda for a long period of time. I acknowledge that this is a problem that the current government inherited and under the previous government and previous to that, under the previous coalition government, this is an issue that has been raised for quite a long period of time. Because it was not adequately addressed by previous governments, we have seen the court cases that have been referred to in this place.

People with a disability are seriously underrepresented in the workforce in Australia and those with an intellectual disability especially so. With only 6.9 per cent of working age people with an intellectual disability reporting work in the open labour market, it is clear that workers with an intellectual disability face, as Inclusion Australia have said:

… large gaps of support to help them move into open employment, earn a real wage and reduce their reliance on the pension.

Structural change is required. We need better strategies and legislation to encourage and support a greater participation by people with disabilities in the workforce. We know that this has been a significant issue for a period of time. In fact, we know participation even in the Public Service for people with disability has decreased.

We need increased participation by people with disability in our workforce. However, discrimination against workers is completely unacceptable and this increased participation should not be through reduced wages. The Australian Greens are committed to equal pay for equal work and are very concerned with the distressingly low payments made to people with an intellectual disability who have been assessed under the Business Services Wage Assessment Tool, BSWAT, and do believe this issue needs to be addressed. BSWAT has been found by the High Court to be discriminatory towards workers with an intellectual disability. The Human Rights Commission also finds that BSWAT is an unacceptable tool and concerns have been raised by a variety of peak disability and legal bodies, including Inclusion, People with Disabilities and AED legal centres.

This bill does not adequately address the continued discrimination of workers under BSWAT and we have some key concerns regarding this bill which we did articulate in our dissenting report on this legislation. We are concerned that a payment rather than a compensation is being offered. We are concerned that people have to waive their legal rights to access the payment. We are concerned about the conflict of interest that arises around the power to appoint nominees. The Australian Greens are also concerned with the fact that the bill does not extend to workers with a disability who do not have an intellectual disability. We support the concerns expressed by PWD at the hearings into this legislation, where they said:

Only people with intellectual disability will be eligible for the payment scheme. A person with psychosocial disability, for example, may work in the same ADE, do the same job and earn the same wage as a person with an intellectual disability but they have been excluded from the payment scheme. The Commonwealth's failure to recognise the violation of rights that people without intellectual disability have experienced will continue.

In terms of accessing payment, approximately half of Australian disability enterprises, ADEs, use BSWAT which means there are currently around 10,000 people who have been assessed using the BSWAT model. This bill offers a potential payment of up to 50 per cent of what is already owed on completed work in exchange for workers losing their right to seek a fair pay settlement—in other words, for 50 per cent of what workers are entitled to they will be asked to sign away their legal rights. Only pay 50 per cent of what they are entitled to is unacceptable. There should be full compensation for unpaid wages. In addition, the lost opportunity of what people could have purchased with their rightful wage is not addressed.

This is a similar situation to an issue that I have spoken on in this chamber previously—that is, the stolen wages of Aboriginal and Torres Strait Islander peoples. One of the issues that came up during that Senate inquiry quite a long time ago was what they could have achieved if they had actually had access to the wages that were stolen from them in the first place? The same concept applies here. What would people with intellectual disability have been able to achieve and bought with the money that they would have earned if a fairer tool had been used and they had not been discriminated against by the BSWAT tool? They may have been able to get better accommodation. They may have been able to get extra training and support. They may have been able to get better accommodation. Opportunities were lost because people were not paid adequately.

The Australian Greens are very concerned about the tight time line that people have to decide if they wish to pursue the payment, which will mean that people will not be able to adequately weigh up all their options to make a decision in their best interest. We are also concerned that there are inadequate provisions being made to ensure that all those affected are aware of their choices and the consequences of decisions. This legislation could lead to unfair outcomes for underpaid workers. There are also inconsistencies between payments, for instance:

A person who is found eligible and is made an offer of payment this year will receive less than if they apply to the payment scheme next year as they would have been working under the BSWAT for longer. This will create unequal outcomes and is unfair.

That was a point that was raised by People with Disability during the inquiry.

There have been discussions around the appointment of a nominee, and we are still not satisfied with the provisions in the bill. The provisions allow the Secretary of the Department of Social Services to appoint nominees on behalf of unpaid workers without their consent. We believe this is very concerning. As the AED Legal Centre said during the inquiry into the bill:

There is no restriction on who can be appointed and no exclusion of individuals or parties with a conflict of interest.

They went on to say:

The third point—and, in my eyes, the most important—is the right given to the secretary to appoint a nominee to effectively stand in the shoes of the supported employees. This is not only a conflict of interest but removes from these employees their very basic human and constitutional rights. There is a very real danger here that the nominee appointed would or could have a larger picture goal in sight rather than that of the employee

The concern here is the issue around supported decision making, which is vitally important to respecting the rights of people with disability. In the NDIS there are provisions for supported decision making, and there has been significant progress in supporting people with intellectual disability to make decisions. We think this bill does not adequately consider that progress or the provisions to adequately support someone with an intellectual disability to make a decision. Ms Sands from People with Disability made this point during the inquiry:

So really the whole provisions in this act around appointing nominees are completely in opposition to respect for supported decision making and respect for a person's right to legal capacity.

Then the AED Legal Centre, who have done a tremendous amount of work on this issue—and I want to take this opportunity to congratulate them on the work that they have done in supporting people with intellectual disability through this process and in raising this issue—went on to say:

There is a conflict of interest, first, in having the secretary being able to appoint a nominee. As to the nominee themselves, the role of that nominee raises the concern that it could be, potentially, a conflict of interest.

This bill does not adequately safeguard and ensure people's legal rights are protected. It does not adequately provide for a person's supported decision making.

We are also concerned about the argument that has been brought up about the viability of ADEs. I acknowledge financial support for ADEs to transition. However, I am still hearing the argument about the viability of ADEs. Quite frankly, it is a fallacious argument. I am not here commenting on the work that ADEs do, but it is not appropriate for them to argue about their viability by arguing that people with intellectual disability should have lower wages to ensure the viability of ADEs. That argument does not wash. Those sorts of arguments have been used in the past to deny and to excuse poor wages for others. It is not acceptable that they use that argument. ADEs are an important part of work opportunities for people with disability, in particular as an initial workplace so that hopefully they can transition to more open employment. They offer support and employment that are very much in demand. During the inquiry, the viability of ADEs to survive if they had to pay the non-discriminatory wage was brought up on several occasions. As I said, while I can understand the concern of ADEs, this is not a valid argument. It is just not acceptable to argue that they should not be paying fair, non-discriminatory wages for the work that people with intellectual disability carry out. The Greens agree with People with Disability Australia that:

… maintaining the financial viability of ADEs is not a consideration that should trump the right of a worker to receive equal pay for work of equal value.

I could not agree more. It is simply inappropriate to mount that argument.

The BSWAT tool has been found to discriminate against workers with an intellectual disability. This legislation does not adequately address the issues that are raised by that issue. We will not support this legislation. This bill does not adequately address the discrimination against workers with intellectual disability. It does not adequately address the issue of compensation. It does not adequately address the lost opportunity of the thousands of workers who have been underpaid using this tool. Governments have known about this for a significant period of time and refused to take action, evidenced by repeated questions in estimates about this tool and evidenced by the campaign run by a number of organisations and people with intellectual disability to get this issue corrected. It has been on governments' agenda for a significant period of time.

Even while the governments—and I say 'governments' because it was the previous government as well—have been prevaricating around addressing this issue and have been in denial about this issue, people with intellectual disability have continued to work under BSWAT and have continued to be discriminated against and suffer lower wages because of the use of this tool, when it was well recognised by everybody else but government and maybe a few ADEs that it was discriminatory against people with an intellectual disability. They continued to be in denial. They continued to encourage its use. And what happened is that people ended up having to go to court to deal with this issue. People with intellectual disability really should not have had to end up in court to get it recognised that this tool was unfair, and they had to continue to work under it. This bill does not adequately address those issues. It does not adequately compensate people and it has some significant flaws, as I have identified here and as Senator Moore has identified.

We will not be supporting this bill, and I also have to say here that we do not think we can support the ALP amendments, because people with intellectual disability and their representatives have indicated that they do not think this bill is flexible. I will repeat here that we have been consistently told by People with Disability Australia and others that this bill is inadequate. These are the people representing people with intellectual disability and they are saying to us that this bill is not adequate. We cannot support a bill where the peak organisation representing people with disability are saying, 'Please do not support this bill,' where the legal advisers are saying, 'Please do not support this bill.' We cannot support a bill that does not adequately address the issues that have been raised by the continued use of BSWAT. As I said, this issue has been on the agenda for a significant period of time. Not for one second do the Greens believe that this issue should not be addressed—it should be—but it should be addressed properly.

Australia has in fact a bad record of addressing the issues of stolen wages, of unpaid wages—making sure that people are compensated for the losses they have suffered. Please do not make this issue for people with intellectual disability another one of those issues. This bill does not address the issues and unfortunately we cannot support it, no matter how much we think that this situation is unfair. We need to actually do the job properly. This bill does not do it.

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

I will start with a response to Senator Siewert. This is not really at the heart of the issue of debating today, because we are talking about a particular scheme, but she seemed to be suggesting that the evidence that we heard—and we did hear evidence in committee that was quite compelling in terms of the viability of ADEs—is somehow not relevant. I think to the broader debate it is absolutely relevant, because if we do not have a scheme, if we do not implement a scheme that enables these disability enterprises to be viable, they simply will not happen and we will not have the opportunities for people with disabilities in these kinds of workplaces. That simply cannot be put aside.

In fact, the evidence that we heard from the likes of David Barbagallo from Endeavour Foundation, who I think he said in evidence is the largest employer of supported employees in Australia, with over 2,100 employees across three states. He and others in that sector have raised serious questions about viability if we do not get this right. So we cannot just put that to one side; we cannot simply just ignore that, because the consequences of that would be that these kinds of opportunities may no longer be there in the future. I do not want to see a situation where that is the case. That is not the fundamental focus of today's debate. What we are talking about is this particular measure in this bill and I will go to that.

The bill seeks to implement a payment scheme for supported employees with intellectual disability whose wages were assessed within a defined period using the BSWAT. Of course, following the recent Federal Court case it was established that the Business Services Wage Assessment Tool used to assess wages had shortcomings that amounted to indirect discrimination. The coalition recognises that there is a need for a system which reflects the concrete and relevant measure of productivity rather than the notion of competency. The BSWAT system will be changed to reflect this need. However—and that is what we are talking about today—the government's immediate priority is to ensure minimal disruption to the employment of supported employees.

The principal rights engaged by this bill are the right to an effective remedy; the right to just and favourable conditions of work; and the right to equality and non-discrimination, including the right of persons with disabilities to be recognized as persons before the law and to the equal enjoyment of legal capacity. The fairness and relevancy of the wage assessment tool will be the focus of the government's future legislation in this area, rather than a focus on levels of wages in abstract terms.

This government is committed to giving all Australians a fair go, a value that is central to the philosophy of this bill. There are around 20,000 workers with disabilities supported by Disability Enterprises in Australia. This bill is an interim measure to see those workers paid fairly and to give them a fair go. This government is serious about its commitment to intellectually disabled Australians and to their ability to make a genuine contribution to society through programs provided by Australian Disability Enterprises. This bill grows out of this serious commitment.

The coalition recognises the importance of supporting intellectually disabled people in their employment. The work that these people do gives them a sense of purpose and a set role within our community. By allowing them to participate in society they are given more control of their lives and a greater capacity to contribute. Their employment directly benefits members of society who are provided with services and goods. Their work helps to drive Australia's economy. Employing people with disability can also build staff morale in the workplace, and increase customer and staff loyalty.

This bill not only benefits workers that were assessed under the BSWAT but the scheme resolves the issue of retrospective liability for underpaid wages. Dr Ken Baker, Chief Executive of National Disability Services, has made it clear:

The calculation of the payment amount will not result in applicants receiving half the amount due to them.

The payment scheme formula says, 'Let's take the rate component'—of the BSWAT—'but let's discount that result somewhat to reflect the limited range of competencies.' An officer for the Department of Social Services has confirmed the payment amount is not related to the issue of productivity but to what the person would have received had the competency component of the BSWAT not been used to assess their wages.

On the legal consequences of accepting a payment, the bill provides choice to eligible applicants. It is the applicant's choice whether he or she receives a payment from the payment scheme. If the applicant accepts an offer, he or she will cease to be a group member of the representative proceedings and will be unable to make any further claims in relation to the assessment of wages under the tool. It is here that the comments of former Disability Discrimination Commissioner, Graeme Innes, are quite relevant and pertinent to this debate, particularly given what we have heard from others. Graeme Innes says this:

... it doesn't take the decision away from people with disability.

They can decide to pursue the matter in court, or they can apply to be eligible for the scheme ... If the scheme is acceptable to the people involved, then it seems to me a much better process to have the money paid to people with disability than paid to lawyers.

I think that that seems a very reasonable point in relation to these bills by former Disability Discrimination Commissioner Graeme Innes—that there is choice; no-one is forced to be part of this scheme. They can be part of an action or they can accept payment under this scheme, and that choice is theirs.

The coalition supports measures to ensure that the person with an intellectual disability is provided with adequate information and advice to make an informed decision. This is made possible through access to legal advice via legal aid and to financial counselling through Commonwealth Financial Counselling, which is funded by the scheme. The department have indicated that they will develop an online catalogue of legal firms which have expressed a willingness to provide advice in relation to offers under the payment scheme. This catalogue will include capacity for a firm to provide a brief outline of their experience, including their experience working with people with intellectual disability. An applicant may also choose to have a nominee, advocate and/or a support person at any stage of the process. To ensure people with disability have the opportunity to provide further information or to raise any concerns, the scheme will also have both internal and external review processes.

Dr Baker said:

… there will be a group for whom it is appropriate to appoint a nominee. There are other protections in the act which I think are there in terms of seeking independent financial advice, independent legal advice, capacity for an internal and external review. All of those add up to what seems to me to be a reasonable range of protections.

The bill attempts, as far as possible, to achieve supported decision making rather than substituted decision making. The provisions in the bill and proposed rules relating to appointments and duties of nominees under the BSWAT payment scheme closely reflect the provisions about appointment and duties of nominees under the NDIS legislation. The rules for appointments will include provisions that identify persons who must not be appointed as nominees. These exclusions include departmental employees and ADEs. Further rules are also being drafted to ensure the preferences of the participant are given appropriate weight. Clause 46 of the bill sets out the duties of a nominee to a participant and the circumstances in which a nominee will be deemed not to have breached those duties.

I think that this bill provides exactly the right kind of balance in dealing with this issue whilst a permanent response to the Federal Court's decision is made. As has been noted by the former disability discrimination commissioner, it gives choice. As has been noted by the likes of Dr Baker, it gives adequate safeguards and adequate protections. That to me seems a very reasonable way forward as we seek to finalise policies and processes which will ensure that we do see a future for ADEs. I do want to see the future viability of ADEs—I think that they have made a great contribution. I think that they have given employment opportunities where those employment opportunities may have never existed. We do have to, going beyond this bill, ensure the viability of those ADEs through good and sound policy.

I commend these bills to the Senate. I think they are an important contribution. I think they provide absolutely the right balance. I look forward to being part of the debate as we settle the other issues that have been raised as part of this discussion.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

In recent years Australia has come a long way toward providing dignity, respect and individual support for people with a disability. We have come a long way in moving the national conversation from the frame of charity to talking about empowerment and the legitimate contribution that people with a disability can make to local communities and to the nation as a whole. I am proud to have been part of the previous Labor government which guided the NDIS from being a dream to a fully-funded reality. Labor also introduced the National Disability Strategy, introduced 'the vision'—the inclusive employment framework for 2012 to 2022—and delivered historic increases to the disability support pension. Clearly we have come a long way. But, sadly, with Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the related bill, the government is taking us backwards—and that is why Labor have proposed the amendments that we have—and in doing so it is not only taking advantage of the some of the most vulnerable in our community but violating their legal and human rights in the process.

Since 2003 a large number of people with a disability who have been employed by Australian disability enterprises have had their salaries determined by the business services wage assessment tool, or BSWAT. BSWAT comprises two tests. The first component is the productivity test, which benchmarks wages based on how long it takes the employee to do their work based on the average worker. The second component is the competency test, which puts the employee through a series of abstract questions about general knowledge that are not directly related to their work. If they get a single question wrong in any category, they receive a score of zero for the entire category. If they have difficulties in understanding or responding to verbal questions, they are very likely to fail the competency test and could end up with a salary as low as 33c an hour. Last year the validity of this mechanism was put to the Federal Court through the case of the Nojin v Commonwealth of Australia. The court agreed with the plaintiffs that BSWAT was discriminatory, with Justice Buchanan saying that criticisms of the scheme were 'compelling'. On the matter he said:

I can see no answer to the proposition that an assessment which commences with an entry level wage, set at the absolute minimum, and then discounts that wage further by reference to the competency aspects built into BSWAT, is theoretical and artificial. In practice, on the evidence, those elements of BSWAT have the effect of discounting even more severely, than would otherwise be the case, the remuneration of intellectually disabled workers to whom the tool is applied.

This means that these Australian workers, who are amongst the most vulnerable in our community, have been paid less than they should have been.

The legislation before us today is the government's response to the court's finding, and it is very disappointing. Instead of offering compensation through a fair process, this government is putting on the table what amounts to a pay-off in return for extinguishing employees' legal rights. The offer for affected workers is that they will receive half of the money they are entitled to, and in return they must agree to forego their right to pursue compensation through the courts for any further compensation. Quite simply, this bill proposes thoroughly shabby treatment of those who already have enough challenges to face in their lives. Labor has serious concerns about it, and that is why we are proposing amendments to this bill.

But it is not just Labor that has concerns. When the Senate Community Affairs Legislation Committee held an inquiry into this bill, the vast majority of participants were scathing in their response. Disability groups, carers, legal representatives and people with a disability were almost unanimous in their contention that the bill represents an unfair attack on the most vulnerable people in our community. Mr Neville Ramaker describes his hurt at the actions of this government very poignantly in his submission, and I quote:

As a person with a disability, I am incredibly ashamed to be an Australian citizen.

The Federal Government and this appalling Bill, is another reminder that through the eyes of the politicians and the Government, I am nothing more than a hindrance that deserves to be further discriminated against for being born with impairments.

I find it very hard to fathom, how the politicians behind this bill sleep at night.

If this is not a clear message that the Federal Government places a higher value in its citizens that are fortunate enough to be brought into this world without any impairments! The highest courts in our land have made determinations that my fellow citizens with impairments are being discriminated against, but the Government refuses to accept those rulings, because it has an unlimited amount of tax payers dollars to spend on passing bills and legislation that send that clear message that 'People with disabilities are second rate citizens without any rights.'

It is very wrong that people like Mr Ramaker should feel this way about their own country and their place within it, but it is not surprising in light of the way this government has been behaving.

When introducing the bill in the other place, Minister Andrews said the bill was 'about providing certainty and reassurance to employees, their families and carers'. Unfortunately, the only thing that is certain here is that intellectually disabled people are getting a raw deal. If the government wanted to reassure workers, it would not be disregarding their basic right to legal recourse. In fact, when the bill was assessed by the Joint Parliamentary Committee on Human Rights it contended that, 'The scheme does not contain the requisite elements of an effective remedy to the unlawful discrimination found to have taken place.'

The right to effective remedy is enshrined under the International Covenant on Civil and Political Rights, which Australia ratified in 1980, and it is the responsibility of this government to ensure that it is adhered to. Josh Bernstein from Maurice Blackburn reiterated this injustice when he recently described the scheme as, 'a blatant attempt to coerce some of our most vulnerable workers into signing away their legal rights, for a sum of money that is just half what they should be paid'.

The second concerning aspect of the bill is the provision which allows the departmental secretary to appoint nominees to act on behalf of individuals without their consent. This removes the authority of the applicant to make decisions relating to their own situation and denies them the ability to appoint someone of their choice as they nominee. When this bill was referred to the Parliamentary Committee on Human Rights, this particular provision was found to be problematic. The committee asserted that there must be provisions to ensure that the autonomy, will and preferences of the individual are respected. It also said the bill should support, rather than substitute, the decision making of represented persons. Again and again, this government seems intent on attacking the most vulnerable in the community—those who are least able to argue their case in the public arena and those who are least equipped to fight back.

The truth is that this is not a small-scale, isolated situation. National Disability Services estimates that up to 12,000 current and former employees may have been underpaid as a result of the BSWAT competence test. But, so far, the Abbott government has done nothing to rectify the discrimination which is inherent in this test. The Human Rights Commission granted a year's extension to the current scheme in April in order to allow this to happen. And here we are in November and, as far as I am are aware, the government has provided no further information or progress reports. The government needs to sit down immediately with disabled people, with employers, with carers and with unions to come up with a solution that removes discrimination and ends the limbo for intellectually disabled workers. It needs to ensure that all disabled people have the right to access a fair day's pay for a fair day's work as a matter of urgency.

Labor understands the importance of Australian Disability Enterprises and the great job they do in providing jobs and support for people with a disability. In principle, we support the government's plan to make a payment as an interim measure while it puts in place an appropriate non-discriminatory means of determining wages that ensures fair pay; however, this should never conflict with basic human rights. Workers' legal rights should be protected. Workers should be entitled to government compensation, but should not be prevented from pursuing further compensation in court; however, we also recommend a provision to ensure there is no double dipping from court-awarded compensation and the government compensation to garner more than what is actually owed. These are sensible changes that would restore dignity and fairness.

Labor would also aim to rectify serious concerns with the nominees' rules that I mentioned earlier to ensure that they are used to support, rather than substitute, the decision making of a represented person. To achieve this, Labor believes that the BSWAT rules should more closely reflect the nomination provisions in the NDIS Act 2013. These rules are underpinned by principles of supported decision making and by the UN Convention of the Rights of Persons with Disabilities. I urge all senators to support Labor's amendments to create a fairer approach that respects the basic rights of these individuals.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I rise today in support of the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014. These bills represent a necessary interim measure designed to reassure supported employees, their families and their carers by removing perceived liability which could impact on the ability of the ADEs to continue to deliver employment opportunities to thousands of Australians following a recent Federal Court case. Australian disability enterprises are not-for-profit organisations that employ people with disability who require supported work environments and are funded in part by the Commonwealth.

Supported employees are paid a wage using revenue derived from the business activity of these enterprises. Over 20,000 supported workers are employed by 193 disability enterprises across Australia with disabilities ranging from moderate to severe. These enterprises represent an opportunity for individuals with disability to engage in the workforce and to participate in meaningful activities with meaningful outcomes while earning a wage that otherwise they would not be able to. Supported employees earn a pro rata wage calculated using a wage tool with the business services wage assessment tool being one of these. This tool was developed by government in consultation with disability sector stakeholders and was first used in 2004. The tool provides a measure of an employee's productivity and competence in performing a job and is used to determine the wages of about half of all workers employed by Australian disability enterprises.

Before I discuss the substance of the bills, I want to go back and have a look at the original intent of this scheme. It is important to remember that the scheme was developed in consultation with the disability sector in order to allow for physically and intellectually disabled people, who otherwise may not be able to gain suitable employment, to do so. In the words of disability advocate Mary Walsh, for many with disabilities and their families their 'work and social lives revolve around their participation in their local jobs and local communities'. Work under the BSWAT has allowed an estimated 20,000 people with a disability to engage and participate in a meaningful way.

A recent Federal Court case found that two supported employees with intellectual disabilities had been discriminated against by the use of the BSWAT in assessing their wage in comparison to those who had physical disabilities. The discrimination that was found to have arisen through the use of the BSWAT was due to the lesser ability of intellectually disabled employees to respond to abstract questions posed to them, even if those answers were not reflective of the manner in which those employees were completing assigned work or interacting with their coworkers. While these proceedings may take some time to resolve, this bill is a proactive measure that establishes a payment scheme that will give reassurance to supported employees, their families and their carers by removing perceived liability that could impact on the ability of all Australian disability enterprises to deliver ongoing employment support.

It is also important to remember that this is a temporary measure, designed to respond to the findings of discrimination while a longer term solution is devised—one that will produce a fair outcome for disabled Australians. The longer term solution will involve the development of a productivity based assessment tool that is relevant to the tasks that employees perform and the phasing out of the current BSWAT. This temporary measure will be implemented with minimal disruption to those employees under that scheme. I believe this is a good, sensible solution and is a fair way of assessing the work done by supported employees. Rather than subjective notions of competency, the value of work will be judged against what is produced or achieved by supported employees. This will be a much more equitable system. In conjunction with the rollout of the NDIS, it will ensure that Australians with disabilities continue to receive the support, assistance and, most importantly, the opportunities they need to thrive and to contribute as any other member of our society would.

This scheme will seek to establish a payment system for supported employees with intellectual disabilities in the ADEs who previously had their wages assessed under the BSWAT. The payment scheme established by the bill will allow eligible persons—those who have an intellectual impairment, have been employed by an Australian disability enterprise and have had their wage assessed under BSWAT—to apply for payments in relation to work they have performed in the past. The payment scheme will deliver payments to eligible workers as quickly as possible. People who consider they are eligible and would like to participate in the scheme must register their interest by 1 May next year. People who wish to test their eligibility and receive an offer must first make an application. Applications can be submitted up until 30 November 2015.

The payment scheme fulfils the ongoing needs of intellectually disabled employees to receive certainty about their employment and to remunerate them for work provided while under the BSWAT system. It is important to note that during the acceptance period the applicant must seek independent legal advice and financial counselling, and this will be funded through the scheme. This will ensure that applicants have a clear understanding of what they are accepting and will provide them an opportunity to raise any concerns with an appropriately qualified person. This is a compromise solution. The strength of this scheme is that it provides certainty of payments to individuals who may be deemed by the Federal Court to have been discriminated against. It will provide access to funds, but in the process will bypass the need for legal proceedings that will be complex, prolonged and, ultimately, have an uncertain outcome for some of the most vulnerable in our community.

A new wage assessment process is to be created in the longer term to be used by ADEs. In support of this, the government has announced that it will provide $173 million to help the supported employee sector work towards new wage arrangements for supported employees working in Australian disability enterprises. This funding will be used in part to support the development and to implement a new productivity based wages tool for use across the supported employment sector. This bill will ensure that employees can continue to contribute to their communities and to work productively for a wage in addition to receiving disability support pensions. It is also important to consider the package of services that supported employees receive at their workplaces in addition to their wage, such as on-site counselling and care.

The benefits received by supported employees cannot simply be reduced to the wages that are paid to them in isolation of that factor only. I heard firsthand in the Community Affairs hearings into this bill that: if the wages for these employees paid by Australian Disability Enterprises were significantly increased and it was not done so in a planned manner and in accordance with a reasonable scheme, it would be unsustainable.

I heard evidence from the Endeavour Foundation, an Australian Disability Enterprise that employs 2,100 supported employees across three states. It is one of the largest employers of supported employees in Australia. They exist for no other reason than to support people with disability to have the same choices of an ordinary life that the rest of us in the community enjoy. They are generally supportive of this scheme.

This scheme will allow them to continue to operate and provide services for their employees; however, if they are forced to move to other assessment models, many of their supported employment sites would no longer be sustainable and would have to close. Evidence provided suggests that up to 90 per cent of supported employees would lose their jobs.

Australian Disability Enterprises are a critical social investment by government. They must remain sustainable and be able to effectively support their workers. Without programs such as those provided by Australian Disability Enterprises, many supported employees with physical or intellectual handicaps would not be able to find employment.

Many of the programs run for the benefit of the employees and are not profit-making enterprises. They exist to ensure that people who could otherwise not participate in the workforce have an avenue in which to contribute to their community, develop skills, and make connections and friendships out of the house

This bill is commendable and is worthy of support, because it provides certainty to working Australians with an intellectual disability. It also provides a sustainable basis for ADEs to continue to operate by providing payments to a large number of employees that they could otherwise not afford. It signals to supported employees that the government is committed to ensuring that they are paid appropriately and in accordance with a fair scheme, and that they are paid in recognition of what was in the past an unfair scheme.

This scheme—and these bills–must be seen as a balancing act. It must balance the responsibility of the government to respond equitably and fairly to the findings of discrimination by the Federal Court and the continued viability and longevity of Australian Disability Enterprises and the 20,000 Australians who are given an opportunity by these businesses to contribute to our society.

Overall, it is a fair scheme offered in good faith to those who have an intellectual disability, work for an Australian Disability Enterprise and have had their wages assessed under the Business Services Wage Assessment Tool. Let's remember why this scheme exists and keep in mind the 20,000 disabled Australians that it will continue to support in the workforce. I believe it is a fair scheme that achieves a balance of objectives and, as such, is worthy of the support of the Senate.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to oppose the Business Services Wage Assessment Tool Payment Scheme Bill 2014, unless the very sensible amendments that Labor has put forward can be agreed to today. It is the Abbott government's shame that we cannot stand here today and have bipartisan agreement on an issue which is so important.

It seems, as we have stood many times as an opposition opposing the harsh cruel measures of the Abbott government, that anyone in our society who needs a little more support or consideration, that that support and consideration is simply not given. Their agenda is to seemingly say to our community as a whole: 'You're on your own. It's up to you. Make your own way, because we're not there to provide that additional support that groups may require.'

All the heavily lifting on issues around people with disability has been done by Labor. We had bipartisan support then as we have seen in aged care, NDIS, child care and a whole range of other areas, but the Abbott government is simply seeking to undo some fundamental principles around helping those in our community who need that additional support.

In speaking to this bill this morning, I looked back at our recent history of people with disability. It is true to say that in the past—and I hope we are long past this—people with disability have been ignored, hidden, and locked away in asylums and other specialist institutions. If we look even further back, people with disability have been subjected to public ridicule through appearances at circuses and the like—a shameful history, which of course has left its mark.

Our most recent past is to view those people with disability as a problem which society has to deal with. We did that by placing people in institutions and/or prisons and the appalling practice of sterilising women and girls. I sincerely hope as a society we are long past that culture, those practices and those beliefs.

Looking at Australia's history, there have been some major milestones. The first of those was in 1908 when the Australian government introduced the invalid pension, which of course increased the independence of people with disability as well as providing them with the acknowledgment to some extent of being recognised members of society. That is from the People with Disability website, which provides a really good history of people with disability in Australia.

Our involvement in World Wars I and II and indeed the Vietnam War forced Australian society to be more inclusive as people came back with injuries which prohibited them from participating in their communities in the way that they had previously. Indeed people also came back with intellectual impairment. So it forced us to recognise that people with disability have the right to live a decent life and be properly supported in leading that decent life. Just saying that people have a right to live a decent life, without putting in the underpinning supports, is paying lip service. It is talking the talk; it is not walking the walk.

I turn now to the particular bill before us. The Australian disability enterprises are, of course, commercial businesses. They employ people with disability who need support to stay in paid work. We all know that enabling decent, respectful employment assists everyone in our community, and people with disability are no different. Work enables them to participate more fully in community life, as indeed it does for all Australians who seek work. There are almost 200 Australian disability enterprises across Australia, and they support 20,000 people with disability. I think the recent stats say there are about half a million Australians who have some sort of disability living in our communities.

Labor believe—and not only believes but has a strong and proud record—that more needs to be done to support people with disability into employment, which is why Labor introduced the National Disability Insurance Scheme. That is the most significant reform to disability services in this country's history. It will become the Medicare of the future. It is something that should be above party politics and should be supported by every single member of parliament and senator in this place. But of course that savage Abbott government budget continues to wreak havoc on all sections of the Australian community. We see in the 2014-15 budget that it is full of savage cuts to people with disability. I know the government will try to play that down, deny it and say it is putting more money in, but the facts are that it is full of cuts to people with disability, their families and their carers. They have been abandoned by the Abbott government.

The coalition government have a history of this. When they were last in government, the value of Commonwealth funding for disability services was cut repeatedly and dramatically. They capped the number of disability employment assistance places. Why as a government would you deny people with disability the opportunity to work? But that is what happened as a result of their capping. Many people simply missed out, fell on the scrap heap and were denied the opportunity to make a meaningful contribution that was good for society and good for them as individuals. Like Labor did in aged care and schools, Labor has done the heavy lifting to repair this. We invested $3.2 billion and uncapped those disability employment assistance places. As a result of that, around 160,000 disability employment service participants with disability found work.

Let's look at the bill, which will establish a payment scheme for supported employees with intellectual disability in Australian disability enterprises who previously had their wages assessed under the business services wage assessment tool, which was developed in 2003. It will determine the wages of about half of all workers in the Australian disability enterprises. Both the Federal Court and the High Court have determined independently that the business service wage assessment tool has discriminated against some people with intellectual disability. When that decision came down, I heard people with disability being interviewed, and I was appalled at how little they earned. That wage would have made no contribution to their wellbeing from the work that they did, failed to recognise the value of their work and did not enable them to lead independent lives. That decision found that a supported employee with an intellectual disability may never be able to meet the competency component measured by that tool, because it was set too high. Of course we know that further representative proceedings are in train.

This means that these Australian workers, some of the most vulnerable in our community, have been paid less than they should have, and to hear their stories was quite appalling. When listening to their stories, Australians who believe in the wellbeing of all Australians, as I do, should be ashamed. I was appalled to hear the sorts of wages they were receiving. They were certainly not wages anyone could live on.

Of course this issue is a complex one. The government tells us the idea of the scheme is to provide some reassurance to supported employees and their families and carers. That is a good thing. We should be providing a reassurance, and Labor supports that reassurance. But Labor cannot and will not support this bill in its current form. It goes back to the old days when people with disability were locked away, when they were not respected, when the value of the work they provide to our communities was not acknowledged. The government wants to just push this through the Senate without consultation with key stakeholders. We are way beyond that in this area. We do need the input of stakeholders. That is how we can inform ourselves correctly. That is how we can make good decisions. When governments make decisions in isolation without any consultation with expert groups and stakeholders, we get these mean-spirited decisions which actually will make life harder and will treat people with disability trying to make a living in the harshest way. That is what happens when governments make decisions in isolation.

So it is back to the bad old days when government knew best and there was no consultation with stakeholders: 'We'll tell you what's good for you.' I thought we were long past that. Certainly Labor is long past that kind of approach. That is why we called for the Senate inquiry. It is why Labor insisted there be a Senate inquiry. That was to give stakeholders some opportunity to give their evidence to government. Of course, as we know, the inquiry raised some real concerns with the bill, and Labor senators on the committee expressed very serious reservations and very serious concerns that the bill effectively extinguishes a person's legal rights. So that bill takes us right back to before 1908 when we first had the invalid pension. We are saying to people with disability, 'We know what's best for you.' To extinguish someone's legal rights is something that Labor senators will not stand for.

The bill stipulates that a person ceases to be a group member of any relevant representative proceeding at the time the acceptance of a payment under the scheme is lodged. Labor cannot support provisions in the bill that seek to extinguish a person's right to pursue compensation through the courts. It is extinguishing that right, whether you have a disability or not and whether you have a physical disability or an intellectual disability. We should not, as a parliament, be extinguishing anyone's rights to proceed to legal action if they believe it is in their best interests to do so. And for the government to put into the bill provisions that do that just shows that it is a patronising attempt—it is just saying to people with disability: 'We're back to the old days. We'll tell you what's good for you. And by the way, we're not going to allow you to appeal your rights.'

We have seen other legislation where the government has done similar sorts of things. This is a government that thinks it knows best and is patronising to a number of groups in our community, and today the target is people with disability.

Labor is determined to see workers with a disability receive fair pay, and we are determined to make sure they retain their legal rights as an absolute minimum. Labor stands here today to urge the government to get on with the very important job of developing a new wage assessment process, one that does not discriminate against anyone with any type of disability—a fair instrument—and, further, to urge them not to extinguish legal rights that workers have.

In giving evidence to the current Senate inquiry, People with Disability Australia argued that:

The Bill is a clear attempt on behalf of the Commonwealth to avoid implementation of the Nojin and Prior judgement, and to sabotage the current representative action for compensation by people with intellectual disability who experienced discrimination as a result of having their wages assessed using the BSWAT. In doing so, the Bill will exploit the vulnerable circumstances of people with intellectual disability who work in ADEs, by providing a payment in exchange for their consent to maintain a system of wage determination which has been proven to discriminate against them.

This absolutely clear assessment, this rich evidence, from one of the stakeholders of what the government's bill will do to people with disability—particularly those with intellectual disability—would have been completely missing if we had not had a Senate inquiry, because the government, again, simply failed to consult with those who are advocates in our system. There is just that failure to consult. And why? Because they knew, I can only presume, that this is exactly what would happen, and they did not want this evidence on the public record; that would be the only reason you would not consult with stakeholders. They did not want to create a fuss and thought they could slip this in through the back door. We have seen them do it in a whole range of other areas, to try to avoid the scrutiny of the parliament and to try to avoid the scrutiny of the work of the Senate in the committee. Here we have a real, live example of exactly why the government wants to do that, because their bill absolutely and categorically seeks to extinguish the legal rights of workers with an intellectual disability—and not only that; it wants to keep their pay as low as possible. Who knows why? Maybe they think that these commercial enterprises should make a big profit off the backs of people with disability. And, if they make a profit, good on them. But, in the meantime, let us pay people fairly and use a tool that is independent and fair, and that absolutely adequately and properly assesses somebody's ability to work. But, no—government knows best! It is out there saying: 'This is the way we will move forward.' Well, Labor is not going to support that unless our amendments are absolutely considered and taken on board by the government.

Labor senators of the committee recommended that the provisions of the bill which seek to extinguish a person's right to pursue compensation through the courts be rejected. I mean, that is the essence of what the government is trying to do: extinguish someone's rights. What sort of government would do that? Who is advising the government that this is a good course of action? It is not. And where does it stop? If we extinguish the rights here, who is the next group to have their rights extinguished? I know the government might think that it might be able to get on with its harsh, cruel agenda more freely if it was able to just extinguish rights here and there and not allow anyone the right of appeal, but I can absolutely assure you: Labor will not stand by and allow any workers or any people to have their rights extinguished in this harsh, cruel way. To not have a tool that properly assesses somebody 's competencies which will lead to a decent and fair pay is quite disgraceful. We are going back to the old days, when people with disability were not respected.

Of course, we are also very concerned by any rules that do not ensure that nominee provisions are used as a last resort. The nominee rules under the NDIS Act are underpinned by principles of supported decision-making and by the Convention on the Rights of Persons with Disabilities, which Labor signed up to in 2008. Certainly Labor remains very concerned that nominee provisions in this bill are not premised on this principle of supported decision-making. The Human Rights Committee has sought advice from the minister as to whether the decision-making models in place are compatible with the rights to equality and nondiscrimination, and Labor urges the government to publish the proposed rules as soon as possible and undertake extensive consultation on them to ensure that they are consistent with the principle of supported decision-making and consistent with the NDIS, which they claim they are signed up to.

To extinguish someone's rights and to not pay a fair wage are not principles that Labor will support, and I am saying to the government today: take our amendments seriously, otherwise we cannot support these bills.

Jacqui Lambie (Tasmania, Independent) Share this | Link to 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.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I am pleased to speak today on the Business Services Wage Assessment Tool Payment Scheme Bill 2014. As we all know, Labor has been a champion of the rights of people with disability. We created the NDIS, the greatest reform for people with disability that this country has seen. It is sad that this government has scrapped the position of disability discrimination commissioner. This would have been a short-sighted decision at any time, let alone when the National Disability Insurance Scheme is rolling out across the country.

We know that people with disability have an enormous amount to contribute to our society and also to the labour market. We all know employment provides confidence and dignity and a sense of purpose. There are many jobs where people with disability can fill roles productively, given the appropriate support. All workers, especially workers with disability, deserve work which is inclusive and provides workers with the safe, fair and friendly workplace, fulfilling social interactions, freedom, dignity, opportunity, a fair wage and economic security.

There are all most 200 Australian disability enterprises across Australia supporting 20,000 workers with disability. Australian disability enterprises are commercial businesses employing people with disability who need support to stay in paid work. Employees are paid a pro rata wage determined using a wage tool including the business services wage assessment tool, commonly known as the BSWAT. The BSWAT measure measures an employee's productivity and competence in performing a job. It is used to determine the wages of about half of all workers in Australian disability enterprises. This bill will, therefore, impact the lives of many of those 20,000 workers with disability who are working in Australian disability enterprises.

In 2012, two supported employees with intellectual disability took action in the Federal Court of Australia claiming that, by using the business services wage assessment tool to measure their work contribution and assess their wage, their employers with discriminating against them, compared to supported employees with physical disabilities. The full court of the Federal Court agreed, holding that the Australian disability enterprises concerned had contravened section 15 of the Disability Discrimination Act 1992. The Federal Court found that a supported employee with an intellectual disability may never be able to meet the competency component measured by the tool. That is the reason we are debating this bill today.

This bill will establish a payment scheme for supported employees with intellectual disability in Australian disability enterprises had previously their wages assessed under the business services wage assessments tool. The bill will essentially provide top-up payment to eligible people who have had their wages assessed under BSWAT. If eligibility is established, a payment amount will be offered based on file of the amount the worker would have been paid at productivity element only had the BSWAT been applied. To be eligible for the payment scheme, a person must have an intellectual impairment and have been employed by an Australian disability enterprise, paid a pro rata wage determined under the BSWAT and have required daily support in the work place from the ADE to maintain his or her employment. Applicants must seek financial counselling and legal advice before the application is assessed. Access to legal advice through legal aid and financial counselling through the Commonwealth financial counselling services is funded through this scheme.

This is a complex issue. It is therefore vital that we get this bill right to give peace of mind for supported employees, their families and carers because it is important that all workers receive fair compensation for their work and historical injustices must be rectified. People with disability, their carers and families need to know that their payment is fair.

The Community Affairs Legislation Committee reported on this bill back in August. I am glad the committee had the opportunity to inquire into this bill because it allows the stakeholders to have a say about the bill. This government did not even bother to consult with the people who represent people with disability working in Australian disability enterprises. That is right, you all heard correctly: this government did not even bother to consult with the people who represent people with disability working in Australian disability enterprises. You would think that when the government creates legislation that impacts on people they would bother to consult with those people and their representatives first, but not this government. It is typical of the arrogant, gung-ho approach of this government that they try to rush through the legislation without caring about the impacts the bill would have on those involved. Time and time again has this Liberal-National government failed to listen to the people affected by their legislation. There is a fundamental injustice in the way Mr Abbott's government drafts legislation. I would suggest that they need to start changing. People with Disability Australia, a key stakeholder group, had this to say to the Senate inquiry— and I am a member of that committee:

To date, People with Disability Australia has not been consulted by the Commonwealth on any element of the Bill, on any plans to transition away from the BSWAT as required by the Australian Human Rights Commission, or on any plans to include us in providing support to people with disability affected by the Nojin and Prior case or the BSWAT in general.

The Commonwealth, DSS and ADEs should consult people with disability and their representative organisations on how best to support people with disability to understand the events that have led to the current situation and to prepare for the changes that may happen in the future. This should include the provision of independent advice and information.

I must say, I wholeheartedly agree with that. The government should consult people with disability and their representative organisations on how best to support people with disability. It is really not a difficult concept. I am glad Labor senators had the opportunity to scrutinise this bill in detail. I would like to thank everyone for the work they did in regard to the inquiry. At least some members of this place took the time to listen to the concerns of this sector. I want to make it clear that Labor senators do support the concept of the government making a payment as an interim measure while the government puts in place an appropriate non-discriminatory mechanism to ensure people receive their pay. As I have said, the government did not consult with stakeholders regarding this bill. Inclusion Australia said in their submission:

The BSWAT Bill before the Senate represents the failure of the supported employment program to provide employment for people with intellectual disability that upholds their human rights to work for fair and non-discriminatory wages.

The ACTU in their submission said:

… the BSWAT Payment Scheme Bill 2014 … could serve to marginalise a large number of vulnerable workers by requiring them to forgo their legal rights to participate in an upcoming class action …

Senator Lines also mentioned this in her speech a few moments ago. I have to say I agreed with every word in Senator Lines' speech. Similarly, the Australian Centre for Disability Law, ACDL, said in their submission:

The Bills, if enacted, would require supported employees to surrender their legal rights in relation to this ongoing disability discrimination as well as in relation to the past discrimination to which they have been subject.

Labor have circulated a number of amendments to the Business Services Wage Assessment Tool Payment Scheme Bill, which we hope those on the crossbenches will support. If these amendments are not passed, we will not be supporting this legislation. I just want to speak quickly about three amendments. Amendments (12), (14) and (18) will enable a person to receive payments under the bill without losing his or her right to seek compensation in relation to the use of a business services wage assessment tool assessment to work out a minimum wage payable to the person. This will allow those people who intend to seek such compensation to also receive payments under the bill. Labor does not believe we should be forcing people with disability to sign away legal rights. In fact, we should not be forcing anybody to sign away their legal rights. I am astounded that any sort of government could take it upon themselves—and think they are just a little bit smart—to try to push this through. It is an atrocious thing to have done. Not only is it harsh and unjust but it is unfair and, if I might say so, very un-Australian.

As I have said, we do not believe that anybody should be signing away any legal rights. We hope that these amendments will address the concerns of the ACTU, the ACDL, which were quoted previously, and other stakeholders. In their submission to the inquiry the ACTU also had concerns with the nominee provisions contained in this bill. They said:

The provisions in relation to the appointment of a nominee are not the solution to the problem of informed choice. In particular, we are concerned about the potential conflict of interest inherent in having a nominee appointed by the Departmental Secretary. If a nominee is required, it would be preferable that this person be directly nominated by the person with disability.

I have to say, I agree with that also. I can see a number of conflicts of interest in regard to having the departmental secretary nominate the representative for the person with disability. The AED Legal Centre had similar concerns. In their submission they state:

… this part of the Bill erodes the fundamental legal rights of employees with disability. We are seriously concerned that the Secretary has the power of appointing nominees notwithstanding the fact that the Secretary has an obvious conflict of interest in doing so.

Labor's amendments call for the nominee provisions in the bill to be amended to more closely reflect the nominee provisions in the NDIS Act of 2013. This change would make the bill match the language of the UN Convention on the Rights of Persons with Disabilities and help Australia to fulfil our obligations under that convention. It would produce better outcomes for the workers with disability that are affected by this bill, and I call on the crossbenchers to, once again, support these amendments that we are making. Labor urges the government to get on with the very important job of developing a new wage assessment process—one that does not discriminate against anyone with any type of disability.

The Australian Centre for Disability Law was scathing of the government's inaction in this regard. Their submission to the Senate inquiry says:

No real work has been done by the Commonwealth or the ADE sector towards the re-determination of supported employee wage levels on the basis of a non-discriminatory wage assessment tool. Moreover, as the use of BSWAT is suspended, there has not been, and will continue not to be, any annual reassessment of BSWAT wage levels for existing employees. Supported employees are therefore becoming progressively worse off, as they are not receiving the increments they are entitled to even under the discriminatory BSWAT wage determinations system.

Inclusion Australia's submission to the Senate inquiry stated:

We believe it is important for the nation to “stop and think” about “what works” in terms of achieving meaningful employment outcomes for people with intellectual disability in terms of both fair wages and in taking their rightful place in the open labour market. This is what the principle of inclusion in the UN Convention on the Rights of Persons with Disabilities requires Australia to do.

I want the government to sit down with people with disability, employers and relevant others as soon as practicable to try to resolve this matter. This is the best approach to reach an outcome that is in the best interests of workers and employers. I call upon the crossbenchers here today to support the Labor Party's amendments to this legislation. They will clear up the deficiencies of this legislation and will prevent the removal of the legal rights of people with disability contained in this legislation.

Just before I conclude, I want to put on the record my thanks to the members and secretariat of the Senate Community Affairs Legislation Committee for the work they undertook in the inquiry into the business services wage assessment tool payment. That committee and secretariat worked very hard. They have a number of inquiries at any one time that they undertake. They do a sterling job in coming up with the outcomes that they come up with and the recommendations that they put forward to government. I thank them most sincerely for the hard work they did.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

I thank colleagues for their contributions in this debate on the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and related bill. We are in the situation that we are because of a decision of the Federal Court in relation to two individuals, which bought into focus the issue of the business services wage assessment tool. In saying this, I am in no way reflecting on the previous government. The BSWAT issue was one that the incoming coalition government inherited from the previous government, but in saying that I am in no way, shape or form reflecting on the previous administration in relation to that matter. The business services wage assessment tool was created out of, I think, a spirit of good faith by the government of the day, which was the coalition government back in 2005. There has been nothing but goodwill on display from the unions and all interested parties in relation to how best to support the staff of Australian disability enterprises. Nevertheless, as we are the government it does fall to the government to seek to address the situation that we are in.

Colleagues would be well aware of the important role that Australian disability enterprises play in the nation. All colleagues would embrace the idea that there should be a continuum of employment options for Australians with disability, that there should be the opportunity for supported employment for people with significant needs in a more intensive environment such as an Australian disability enterprise. There should also be the opportunity for people with disability to be in the open workforce with a bit of extra support should they need that. There does need to be a range of options. If you have a significant disability, sadly, in Australia you are probably twice as likely to be unemployed.

As a parliament and as a Senate, we want to do whatever we can to ensure employment options for people with significant disability. I, for one, would not want to see Australian disability enterprises go out of business because of circumstances which may have been unforeseen. There really are two aspects to the matter before us. One is what we do looking to the future and the other is what we do looking to the past. In regard to what we do looking to the future, the government have announced $173 million to assist with the development of a new wage tool and also to assist disability enterprises with transition costs. The legislation that is before us, however, is intended to deal with the past. Without making any judgement on the past, it recognises the fact that there is a representative action afoot and the legislation seeks, in essence, to give a quick and simple alternative to people. That is essentially what we are seeking to do here.

It is important to recognise that the 2012 Nojin decision by a group of advocates representing people with disability related to just two workers not the whole cohort of people in Australian disability enterprises. Whether the BSWAT was discriminatory or not in relation to all ADE workers turns on each individual's circumstances. I think it is also important to remember that Mr Nojin and Mr Prior's legal representatives withdrew their claim for compensation at appeal; therefore, the court made no judgement in relation to compensation owed or not owed to them. I think that is an important point.

What we want to do with this legislation is provide the greatest amount of certainty that we possibly can for Australian disability enterprises, that the circumstances of the past will be addressed, that there will be the opportunity of a payment scheme for their supported employees. That knowledge of the existence of a payment scheme will provide some comfort and a greater degree of certainty to Australian disability enterprises. We also want to provide the payment scheme to provide certainty and simplicity for supported employees who may have had their wages previously determined under the BSWAT. As has been pointed out by many colleagues, many of those who are supported and many of those who work in Australian disability enterprises would be eligible under the government's proposed payment scheme, and often those are the people who face challenges for reasons beyond their control. We want a system that is straightforward and accessible to them.

It has been pointed out by colleagues in their contributions that the government are seeking to extinguish certain legal rights of supported employees. What this legislation seeks to do is actually the opposite. It seeks to give a choice to supported employees, that they can have the option of the representative action or they can have the option of the payment scheme. This legislation gives choice. As is common with these sorts of arrangements, you opt for one approach or the other. That is a choice that is there for supported employees. They can choose a representative action or they can choose the payment scheme.

If this legislation does not pass, we will see less choice for eligible supported employees than would be the case if this legislation did pass. For me, that is perhaps the single most important point of this legislation. This legislation offers choice. People have a legal right to pursue a representative action and that is their choice. Should this legislation pass, they will have another avenue of opportunity. Which path they choose is entirely up to them. But what is clear if this legislation does not pass is that the payment scheme will not be established and there will be narrower choice. There will be less choice for supported employees. I ask colleagues to reflect on that as they consider the matter that is before us.

I want to acknowledge the constructive approach that a number of colleagues have taken in this debate, particularly Senator Moore. We may quibble on some of the amendments, but Senator Moore is very positive and constructive in relation to these matters. Senator Siewert as well approaches these matters in good spirit. I also want to acknowledge the Palmer United Party, particularly Senator Wang and Senator Lazarus, with whom I have had very productive discussions, and the Palmer United Party have crafted an amendment which the government is happy to support. That is the spirit in which debates on matters such as this should be conducted.

As has been indicated to the opposition, I have some difficulty with some of their amendments, particularly those which would allow individuals to access both the payment scheme and a representative action at the same time—to pursue their avenues under both mechanisms. The opposition will counter that, under the proposed amendments, there would be the opportunity, if someone were successful at law, having also drawn down on the payment scheme, to seek to recoup funds equivalent to those which had been drawn down from the payment scheme. I acknowledge that. But I do not think it is desirable or necessarily 'real world' to seek to recoup payments from someone who is potentially vulnerable. It is a messy process which those opposite propose. I think it is much better to have a cleaner, simpler arrangement, where individuals have the choice of a representative action or a payment scheme. Seeking to allow individuals to be part of both and net out the difference and have a recovery mechanism is fraught at a number of levels.

The other main amendment of the opposition is that which relates to nominee provisions. The government have sympathy with the opposition's approach, but that is an approach which we think can and should be given effect to through the regulations rather than through the primary legislation essentially seeking to achieve the same outcome but through a different mechanism.

I commend the legislation to colleagues. I think colleagues should reflect on the difficulties that there would be in allowing people to take part in both a representative action and the payment scheme and then seek recovery of moneys if people ended up being successful at all. I think that is fraught.

I should also point out that the government has amendments—and I will move them shortly—in relation to some minor administrative matters which are essentially a tidying-up and which I do not think will cause colleagues any concern. But I will leave it at that. We will no doubt have a committee stage, given the amendments that there are from colleagues, and I look forward to contributions at that point.

Question agreed to.

Bills read a second time.