Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

On 17 March 2015, the Senate agreed to recommit these bills and that the committee would resume consideration of the bills in the form in which they stood immediately prior to their being negatived in committee on 24 November 2014.

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

I table a further supplementary explanatory memorandum relating to further government amendments to be moved to the Business Services Wage Assessment Tool Payment Scheme Bill 2014.

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

The opposition has a number of amendments, which we have circulated this morning. They follow through the same procedure and the policy position we had the last time this bill was before us.

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

by leave—I move government amendments (1) to (6) on sheet EH170:

(1) Amendment (1), omit "1 July 2015", substitute "1 May 2016".

(2) Amendment (6), omit "1 July 2015", substitute "1 May 2016".

(3) Amendment (7), omit "1 July 2015", substitute "1 May 2016".

(4) Amendment (8), omit "1 July 2015", substitute "1 May 2016".

(5) Amendment (9), omit "1 July 2015", substitute "1 May 2016".

(6) Amendment (10), omit "1 July 2015", substitute "1 May 2016".

I also seek leave to move government amendments (1) to (22) on sheet HK115 together.

Leave granted.

I move government amendments (1) to (22) on sheet HK115:

(1) Clause 3, page 2 (line 8), omit "1 December 2015", substitute "1 December 2016".

(2) Clause 3, page 3 (line 1), omit "1 September 2016", substitute "1 September 2017".

(3) Clause 3, page 3 (line 3), omit "31 December 2016", substitute "31 December 2017".

(4) Page 3 (before line 7), before clause 4, insert:

3B Principles for nominees

     This Act and the rules are intended to reflect, in relation to nominees, the following principles:

  (a) all adults have an equal right to make decisions that affect their lives and to have those decisions respected;

  (b) persons who require support in decision-making must be provided with access to the support necessary for them to make, communicate and participate in decisions that affect their lives;

  (c) the will, preferences and rights of persons who may require decision-making support must direct decisions that affect their lives;

  (d) laws and legal frameworks must contain appropriate and effective safeguards in relation to interventions for persons who may require decision-making support, including to prevent abuse and undue influence.

Note: The safeguards referred to in paragraph (d) are provided in this Act (see for example section 54) and the rules.

(5) Clause 12, page 11 (line 6), omit "1 December 2015", substitute "1 December 2016".

(6) Clause 12, page 11 (line 9), omit "1 December 2015", substitute "1 December 2016".

(7) Clause 12, page 12 (line 3), omit "2016", substitute "2017".

(8) Clause 12, page 12 (line 4), omit "1 September 2016", substitute "1 September 2017".

(9) Clause 12, page 12 (line 6), omit "1 December 2016", substitute "1 December 2017".

(10) Clause 12, page 12 (lines 7 and 8), omit "31 December 2016", substitute "31 December 2017".

(11) Clause 15, page 13 (line 26), omit "1 July 2014", substitute "1 July 2015".

(12) Clause 15, page 13 (line 27), omit "30 November 2015", substitute "30 November 2016".

(13) Clause 15, page 14 (line 4), omit "1 December 2015", substitute "1 December 2016".

(14) Clause 16, page 14 (line 12), omit "1 December 2015", substitute "1 December 2016".

(15) Clause 18, page 15 (line 27), omit "1 December 2015", substitute "1 December 2016".

(16) Clause 21, page 18 (line 27), omit "1 September 2016", substitute "1 September 2017".

(17) Clause 21, page 18 (line 30), omit "1 December 2016", substitute "1 December 2017".

(18) Clause 22, page 19 (line 13), omit "31 December 2016", substitute "31 December 2017".

(19) Clause 22, page 19 (line 15), omit "30 November 2016", substitute "30 November 2017".

(20) Clause 38, page 30 (line 11), omit "1 January 2017", substitute "1 January 2018".

(21) Clause 102, page 65 (line 14), before "The", insert "(1)".

(22) Clause 102, page 65 (after line 19), at the end of the clause, add:

(2) To avoid doubt, the rules may not do the following:

  (a) create an offence or civil penalty;

  (b) provide powers of:

     (i) arrest or detention; or

     (ii) entry, search or seizure;

  (c) impose a tax;

  (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

  (e) amend this Act.

(3) However, to avoid doubt, rules that make provision in relation to:

  (a) the payment amount for a person; or

  (b) amounts of remuneration or allowances for the purposes of subsection 27(4); or

  (c) amounts of costs, expenses or other obligations for the purposes of paragraph 98A(1)(e);

are not to be taken to set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act for the purposes of paragraph (2)(d) of this section.

These are minor but important amendments that support the intended operation of the new payment scheme. I should indicate that, at the request of Senator Madigan, there are amendments that insert principles for nominees and supported decision making into the primary legislation. The principles were originally intended to be included in regulation, but this amendment highlights the importance of the provisions to ensure that the rights of people with intellectual disability are protected in line with current best practice, as identified by the Australian Law Reform Commission.

The amendments also adjust the dates for the operation of the scheme to reflect that the scheme will be starting later than originally intended. Former and current eligible employees will have to register to participate in the payment scheme if it is indeed legislated. The registration deadline will be moved from 1 July 2015 to 1 May 2016. This means that a person will have to take action to register before 1 May 2016. In addition, the Scrutiny of Bills Committee raised concerns about the extent of the minister's powers to make rules. The amendments clarify the extent of the minister's powers to make rules by setting out, to avoid doubt, certain matters that may not be addressed by the rules.

While I am on my feet, since it has been a little while since this bill has been before the chamber, I will just briefly recap as to the necessity of this bill. Colleagues will be aware of the fact that the Federal Court found in relation to two individuals that there had been indirect discrimination as to how the business services wage assessment tool—the BSWAT—had been applied in those particular circumstances. The Federal Court decision related to the circumstances of those two individuals. It was not something that related more broadly.

Nevertheless, the government recognised that there were some issues in various parts of the community in relation to the business services wage assessment tool. The government sought to do three things to help create a more certain environment for Australian disability enterprises and also for supported employees. The first of those was the Department of Social Services, during the caretaker period before the last election, made application to the Human Rights Commission for a temporary exemption of the operation of the Disability Discrimination Act as applied to the BSWAT. The purpose of seeking that temporary exemption was to ensure that disability enterprises who had used the BSWAT did not have concerns that they could potentially be operating outside of the law.

A temporary exemption was sought for three years. The Human Rights Commission granted it for one year. The reason why a three-year exemption was sought was to allow time for a new wage assessment tool to be developed that enjoyed broader confidence and support. As colleagues are probably aware, that one year exemption recently expired and the Department of Social Services made application for both an interim exemption and, also, for a further 12 month exemption. The purpose of the interim exemption being to allow the commission time to consider the request for a 12 month exemption. The interim exemption was granted.

That was the first thing—to seek a temporary exemption from the DDA applying to the BSWAT. That was intended to deal with the present at that time; to provide a certain operating environment for disability enterprises. We as a government also sought to do something to address the future. I announced over a year ago, I guess, that we would set aside $173 million to do a few things to help support consultations in the development of a new wage assessment tool, but, also, importantly, to assist disability enterprises with the transition to the likely higher costs of a new wage assessment tool. So that was something to deal with the present, in terms of the application for a temporary exemption from the DDA, and something to deal with the future in terms of the $173 million to develop a new wage assessment tool and help with transition costs. Also, through this piece of legislation we have sought to do something to address the past. We have sought to provide an opportunity and a choice for supported employees who have been assessed under the Business Services Wage Assessment Tool.

Colleagues will be aware that there is a representative action afoot under the auspices of Maurice Blackburn, and what this legislation seeks to do is to provide supported employees with an option. At the moment, the only option is the representative action and, as we all know, with legal action there is no certainty as to what might ultimately result. The purpose of this legislation is to seek to give some certainty to disability enterprises and to supported employees. The intention of the payment scheme that we have before us is: that individuals would have the opportunity to take part in a payment scheme that would take into account the length of service that they have given in a disability enterprise; that there would be a formula to determine that the payments that individuals would have; and that that would be a quick process with a certain outcome and a definite amount of money. It is important when we are talking about individuals, particularly those who have intellectual impairment, that there be important safeguards built in. There are important safeguards here. For someone to be eligible to take part in the BSWAT payment scheme, they would be required to furnish evidence that they had received independent legal advice and independent financial advice. Under the payment scheme, the federal government would pay for that independent legal advice and that independent financial advice. People would be required to demonstrate, before taking part in the payment scheme, that they had received that independent advice. Again, I emphasise that the Commonwealth would pay for it.

Also, we have some other important elements under the payment scheme legislation. Receiving a payment under the payment scheme would not affect an individual's social security entitlements that they may be in receipt of. I think that is an important comfort for people, as well. In addition, there would be a lump sum in arrears tax offset where that was relevant. We want to make clear that, basically, receiving a payment in the payment scheme will not affect someone's tax situation or their social security payments. They are also important protections.

Colleagues may also recall that an amendment was moved by some of my crossbench colleagues in this place—I think by Senator Lazarus with the support of Senator Wang and other crossbench colleagues—to introduce an indexation arrangement in relation to the BSWAT payment scheme. The indexation would be the CPI rate for each relevant year in the period relating to payment amounts, from 2003-04 to 2013-14, and the CPI rate would be applied to individual years to give a compounding effect. The effect of that amendment would be to increase individual amounts paid to claimants in the scheme. The original legislation has been enhanced by an amendment from the crossbench, which the government supported, but the most important point here is that this legislation does not seek to take rights away from individuals and it does not seek to take choice away. Yes, the legislation does state that an individual has to choose whether they want to take part in the BSWAT payment scheme or the representative action. Some have contended that the legislation removes legal rights. It does not do that. It is completely and absolutely open to an individual to say, 'We want to pursue our rights at law; we want to take part in the representative action.' Nothing in this legislation prevents an individual from doing that if that is their choice. But if that is the path that is chosen the payment scheme is not an option for them. On the other hand, someone can elect, after receiving the independent legal and financial advice, which the Commonwealth will pay for, to take part in the payment scheme, and in so doing that is the option that they have chosen.

What is incontestable is that if this legislation does not pass there will be a choice and an option that is not available to supported employees who have been assessed under the BSWAT. If this legislation is not passed, the only avenue available for an individual will be the representative action. If this legislation is passed, there is another option which is presented for supported employees who had been assessed under the BSWAT. They will have the option of the representative action, or they will have the option of the payment scheme. But the choice is that of the individual. So this legislation seeks to give a choice that is not currently there. If this legislation is not passed, then there will be an option which is denied to supported employees.

These matters, I think, have been well-canvassed over an extended period of time. They have been well canvassed by the government, well canvassed by the opposition, well canvassed by the crossbench, well canvassed in this chamber, well canvassed in disability enterprises and well canvassed in a number of public forums. So I think that the choices are fairly clear. This legislation seeks to give an option that is not currently there. Importantly, there are safeguards in this legislation to ensure that people who are examining the option of the payment scheme get legal and financial advice and that that financial advice is funded. The intent is that people can make a good, sound and informed assessment of the options that are before them. We want people to make choices that they believe are in their best interests. That is what we want. We want to provide a choice for that. More than that, we are providing financial support for independent legal advice and independent financial advice.

Given the time that had elapsed since this matter was last before the chamber, I thought it might be useful for colleagues for me to recap on the history of this matter: what the government sought to do to deal with the present, what the government is seeking to do to deal with the future, and what the government is seeking to do to deal with the past.

The CHAIRMAN: I advise you, Senator Moore, that I have now received 24 amendments circulated by you. There is also an explanatory memorandum. If you would like to seek leave to table that, I think this would be an appropriate time to do so.

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

I seek leave to table that.

Leave granted.

I table that.

The CHAIRMAN: The question before the chair is that amendments (1) to (6) on sheet EH170 be agreed to.

Thank you, Minister, for that overview of what has gone before this time. It is very clear that there is an acknowledgement that people working in the enterprises were working in a discriminatory workplace. That has been determined. We had the ruling from the Federal Court. I will be asking questions, Minister, about where the development of the new tool is at. When we debated this bill last time, I asked where the development of the new tool was at, and I was told that it was in train. So I am hoping that it is kind of in train now.

When the Senate community affairs committee looked at this bill originally, there was a great deal of concern raised by people who came to see us. That concern was not just about the fact that people were not being paid—as was said to many of us—a fair day's pay for a fair day's work. It was about the confusion amongst not just the ADEs or the employees but also their families about exactly what the situation with their employment was. As we know—and we have heard this consistently—there is a deep personal relationship between many of these employees and their employment. They value their employment immensely. It is their link, it is their social engagement, and it is also their feeling of worth in their community.

Once the decision was made by the court that the BSWAT tool, as it was then placed, was discriminatory, there was a need then for people to go back and consider exactly what should be the form of employment wages for people working in these ADEs. At that time, we said consistently that it was so important for people to get together to talk about this to really identify what the needs are, to identify the viability of the process and to ensure that people were effectively linked to their employment.

The amendments that we have before us only change a couple of things. They change the dates, because, of course, as this legislation was first tabled last year, there is a need to change the actual implementation date. The first range of government amendments are just doing that, so of course there is no problem with that. The other bunch of government amendments bring forward a couple of issues. One issue is around informed decision making. I had a particular question about that, Minister, in terms of the words in the government amendment and in terms of the placement of the government amendments. In the government amendment, the principles for nominees are spelled out there. As you know, in our inquiry we looked at that in a detailed fashion. In the opposition amendments, we also have very similar wording looking at the same outcome, which is ensuring that we have a consistency of supported decision making across this area. We have them in our amendments under 4A, 'General principles guiding actions under this act,' and we would like to get some information from the minister and the department to compare and contrast them.

The major opposition amendments are picking up the issue, which the minister talked about in his contribution, about the element of choice in this legislation for the people who are involved. It is important that there is informed choice. I have a number of questions—as I had last time—about the access that people will have to the support that they need to make informed choices. More particularly, this is not an open choice. What we are saying in this employment is that we know there has been discrimination in the workplace; that people need to be, in some senses, compensated because they have not been paid fairly. So the department and the minister have, quite rightly, come up with a new way of looking at the way that people are being employed and some kind of payment with a back payment that acknowledges that. We really support that, because people know that they have not been treated fairly, so the government payment is to ensure that people have that security. The minister has portrayed that this is an open choice by people: if this bill passes, they can actually get the government payment. But that would exclude them from any benefit out of the legal processes to look fairly at whether they have been discriminated against and whether they should have a higher wage rate.

That legal action is in train. We know that it will take a long time. Legal action of this type takes a long time. We had evidence at our inquiry that they had no idea when this particular action would be concluded. We also know that the people who were involved, the families, were interested in being part of that. They went through that process and have seen the success of that legal action, taken by a gentleman almost two years ago. So there is interest in that.

This bill says, 'We acknowledge that, but you as individuals, who, in some cases are the most vulnerable employees in any source of employment in this country—people with intellectual disability—will now have the responsibility, with the support of financial advisers and lawyers, to make the decision: either take the money the government has offered you or take personal legal action. You can't do both.'

We are saying that is a restriction, Minister, and that you should not limit that option and that choice for these workers. We are also saying in the amendments, which will be before you today and which are different to the ones we brought forward last year, that we do not need the complexity of having a repayment process, as we had in our previous amendments. We have advice that if people do take up the legal process, as well as maintain their work in the enterprise, when any decision is made then payment that they have received under the departmental process would be taken into account along with payments they have received through the legal process.

So it is not a process of them getting a double benefit. It is actually a process that allows workers to have the freedom, the full options, the full potential and the rights that they as workers should have—workers who have already been determined by the system to have not had an equitable employment process. There is no doubt about that. In the evidence at our inquiry, from the department and also from different people, it was clear that there was an acknowledgement that the BSWAT model was discriminating against people in the workplace. We know that you cannot make a general process and say that everybody is being treated the same way. But we know that the court determined that this particular model was discriminatory, so people had missed out on their rights. The minister actually talked about the past and about where that fact had been determined it was acknowledged that there needed to be a change. He talked about the present and about the process whereby people would be able to receive support for legal and financial advice. But what he did not talk about was the future and the way that we think the system should operate.

Labor believe these workers should have absolute freedom of choice. They should be able to understand their circumstances, what they are now being paid and for what. They should be able to understand the changes that would be available in the process with the modelling that the departmental process will bring in. They also need to understand how that works and how they will be individually impacted. Then central to that must be the acknowledgement that, if there is going to be a class legal action for this body of workers, people should not be excluded from that. That means that they do not have the full choice that they deserve. That is what our amendments would lead to.

One thing that is most concerning in this whole discussion—and we have had visitations from so many groups and so many families—is that the families are worried and scared about the wellbeing of their family members. They have been upset by the actual processes that have gone on. They are worried about the future for these employees and about the need for them to fully understand the legal and financial situation.

Our amendments, which we will be moving, are not, in many ways, in complete contradiction to what the minister has said. But the core difference between what we believe should happen and what the minister is putting forward is that Labor do not believe that the choice offered by the department and by the minister is a full choice. We believe that we are limiting the choice for those employees. They have the right to have their options fully tested and the right to determine whether they are getting the right payment for the work they do. And by cutting off that legal option they may never know. They will just accept what the department gives them and continue with the status quo: they are told what their wages should be and they accept it. That is not good enough.

It is not just me saying that that is not good enough; that is what the Federal Court said. It said that the BSWAT model did not allow that process. So with respect to the government amendments that are before us, the changing of the date, on the first page, I would imagine that is just a case of making the system operate. There is no problem with that. We just have a difference around the decision-making process and also the options of legal process.

The CHAIRMAN: Thank you, Senator Moore. Earlier I incorrectly described a document you were seeking to table as an explanatory memorandum. Of course, it is not. As you well know, it is a statement of reasons and there is a specific process that I will deal with when we get to your amendments.

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

Thank you, Chair, and Senator Moore for the contribution. The principles for nominees, which are in our amendments, are the finalised principles of the Australian Law Reform Commission, which occurred about the time that the legislation was last before the Senate. Given that the opposition amendments have only just been circulated, I have not been able to compare word for word, but it may be that the opposition's wording is taken from the NDIS legislation. I think the Australian Law Reform Commission's finalised principles postdate what is in the NDIS update. I should indicate, again, that it was at Senator Madigan's request that this be put into the bill itself rather than be a part of the regulations.

Senator Moore also asked about the development of a new wage assessment tool. We are fundamentally in the hands of Fair Work Australia, who are auspicing, oversighting, the development of that process, and currently the parties are in conciliation—Fair Work is undertaking a conciliation process in relation to that.

Moving to other elements of the opposition's amendments, I recognise that the opposition are no longer pursuing what was in their amendment the last time these matters were before the chamber, which was that an individual could take part in both the payment scheme and the representative action and that, if the representative action subsequently was successful and someone had taken part in the payment scheme and were receiving both amounts, there would be a mechanism for the government to seek to recoup the difference between the two. At that time, I indicated that I did not think any government would ultimately seek to pursue individuals with intellectual impairment, maybe many years down the track. Putting aside the practical difficulties, I did not think any government would seek to do that.

So I recognise that the opposition is no longer pursuing that, but the opposition amendment still fundamentally lands in the same place as its earlier amendments, which is that it would allow people to take part in both actions and is, I assume, relying on the fact that a court making a determination about any moneys related to the representative action might, if someone had received payment in the BSWAT Payment Scheme, take account of that when determining what they may pay or what they may direct that someone is owing or is owed. The courts may; the courts may not. Ultimately, the courts decide what the courts decide. I note the opposition amendment is not seeking to bind the courts or ensure that the courts act in a particular way. If the opposition amendment were seeking to do that, it would be traversing some unusual ground, and I recognise the opposition is not seeking to do that. But what the opposition amendment is assuming is that courts might take into account, in determining payment under a representative action, what someone had already received through the payment scheme. Now, we do not know. It is something we do not know.

I am not comfortable, and the government is not comfortable, about bringing together, meshing together, two completely different mechanisms. One is a legislated mechanism, the legislated payment scheme which we have before us; and the other is the free operation of the courts, of our judicial system. I think it is appropriate that we seek to keep those two processes separate and, in so doing, provide a choice. It is untidy to seek to mesh in some way a legislative payment scheme and court action that is afoot.

What the legislation before us seeks to do, as I have said before, is give an option that does not exist at the moment. What I cannot conceive is how giving an additional option which does not currently exist in any way, shape or form can take something away from someone—because, in the absence of this legislation, there is only one option, the representative action. This legislation gives a choice. In the absence of this legislation, there is any one option; if this legislation passes, there are two options. There is a choice for an individual and their family to make, a choice which is informed by independent legal advice and independent financial advice paid for by the Commonwealth.

So I have great difficulty in accepting any contention that by legislating to establish another option we are in any way, shape or form denying people choice. In the absence of this legislation, there is only one option; if this legislation passes, there are two options. And I think it is a good thing that people have that choice: the choice between a payment scheme which is straightforward, with a guaranteed outcome, and, if they so elect, their rights at law. The choice is theirs, and this legislation establishes an option that will not be there in the absence of this legislation.

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

I rise to contribute to the debate. The Greens have not changed our position on the government's bills, despite the amendments the government has here. The minister just used the words 'not comfortable'. Well, the Greens are not comfortable with this because, despite the minister's fine words, this does limit people's choice. People are being given the choice between either taking this substandard replacement or recompense for wages that they lost, and a tool that has been in use for a number of years during which people knew it was wrong. People knew it was wrong; people knew it was discriminatory; and it took people with disability and also very hard work, a lot of it pro bono, by advocates and lawyers to address the situation. It is not as if governments—and I mean governments of both persuasions—did not know that this was a discriminatory tool.

Now the people who are affected by this discriminatory tool are faced with the fact that choice is actually being taken away from them. It is: 'Here's a bird in the hand now, and we'll give you part of what you are owed.' I will note here, as I noted last time, that we have to take into account not only that they were paid substandard discriminatory wages, but that the opportunities that full wages—proper wages—would have given them should also be included in that. That should be taken into consideration. It is not just the loss of the wages; it is the opportunities those wages would have given those people. Their choice is being taken away, because they are being told, 'Take this now. It's better than nothing and you may get nothing in a court case.'

We also need to look at the NDIS. Under the NDIS, if you acquire your injury and your disability in an accident, you are actually forced to take legal action. But you can go into the scheme in the meantime, while your process of legal action is taken. To my way of thinking, that is the same sort of concept as the ALP's amendments: you can take care of yourself now while you pursue those legal options. People have the right to take legal action. What the government is saying here is: 'We will give you a bit of money if you don't take that choice.' To my mind, and to the Green's mind, that is not choice. We are not comfortable with this approach that, to be frank, is more focused on the government trying to save some money in the long run, and also on protecting ADEs. I am not having a go at ADEs. I know that is what is being portrayed, but that has also been part of this mix and I am sorry but they do not come first. People with disabilities come first, and we are limiting their choice with this legislation. It is taking away people's choice. It is giving them substandard recompense for the years that they have been subject to the discriminatory tool. We know this tool is discriminatory, because the court has said so. They need to fix it.

We understand that is a process that is being undertaken and we have yet again consulted extensively. We did so for our first position, as I outlined in my contribution to the second reading debate on this bill in the first place. We consulted extensively then and we have consulted extensively again. The fact is, people with disabilities, their representatives and their advocates do not support this. They do not support this approach. They are the ones who took the action in the first place. It was their persistent work that got us to the point we are at. They do not support this bill. The Greens cannot support something that people with disabilities, their organisations and their advocates do not support. Even with the amendments we still cannot support it. I will make a further contribution when the ALP's amendments are being debated.

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

I thank Senator Siewert for her contribution. I should say that I do not think any colleague in this place brings anything other than a genuine approach to their views in relation to the BSWAT payment scheme and disability enterprises. It is just that, from time to time, in this area we have reached different conclusions.

In response to Senator Siewert's contribution, the Federal Court determination was in relation to the specific circumstances of Mr Nojin and Mr Prior, and I think it is important to recognise that, while that case obviously has affected the confidence of a number of people in the BSWAT, the basis upon which we are looking at this matter is really to respond to the lack of confidence. There has not been a court determination in relation to the BSWAT as a whole. The court determination has only been in relation to the application of the BSWAT—how it was applied to the specific circumstances of Mr Nojin and Mr Prior. But, of course, we recognise that there has been an effect on the confidence in the BSWAT tool.

We have sought to address the present, the future and the past in this matter. In my opening contribution, I probably did not emphasise enough the importance of disability enterprises. Yes, I agree with Senator Siewert, but all of us here are remorselessly focused on the individual supported employee. That is the beginning and the end of our consideration. It is all about the supported employees. But it is also important, in ensuring the continued employment of supported employees in disability enterprises, that we seek to create, as far as possible, a more certain environment for disability enterprises. This is why I strongly supported seeking a temporary exemption from the DDA for the BSWAT, why we put in place the $173 million to develop a new tool and help with transitions costs for ADEs to a new wage assessment tool, and why we are seeing to legislate a BSWAT payment scheme. I think those three things together help to create an environment that is more certain for disability enterprises. That is my objective. The intention to provide a more certain environment for disability enterprises is solely focused on ensuring that they are in a good place to be able to continue to employ people with disability, which I think is what all of us are about.

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

On Monday, 24 November, I rose to oppose the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014. The Senate defeated the government's legislation by one vote. By one vote, more than 10,000 Australian workers with intellectual disabilities had their court-recognised entitlements for back pay protected. Seven months later, this government has now brought back to the Senate essentially the same bill with the same intent: namely, to steal about half of the 40 per cent of the back pay owed to 10,000 Australian workers with intellectual disabilities. Which prompts the question to Prime Minister Abbott and the Liberal and National Party members of this place: what have you got against 10,000 workers with intellectual disabilities?

Surely they and their families have suffered enough. Why won't you just accept the court rulings, accept that you have got it wrong, and accept that the Australian government got caught out stealing money from disabled people—and pay the full 100 per cent of that money that is owed to them. Stop wasting money on more legal fights, and stop wasting the time of the Australian people in the Senate: just let the 10,000 Australian workers with intellectual disabilities have all their money—not part of it; not about 63 per cent of it but 100 per cent of it. Surely that is not a lot to ask. Authorise the release of the full amount of money owed to them.

The re-presentation of this bill is a new low for this government and I am disgusted. However, I will work with the other senators on this legislation, and turn this lemon into lemonade. I will support amendments foreshadowed in this Senate which will allow the part payment of moneys owed to the victims while still giving the 10,000 Australian workers with intellectual disabilities the right to pursue in court the remaining moneys owed by the Commonwealth. Should those fair amendments fail to pass the committee stage of this debate, I will vote to oppose this legislation at the third reading stage—because as it stands, this Liberal bill, the Business Services Wage Assessment Tool Payment Scheme Bill 2014, is still grossly unfair. This bill tries to take away the justice delivered by a court to Tyson Duval-Comrie, who is leading a federal court class action on behalf of all 10,000 workers with intellectual disabilities—and, my goodness me, he is certainly leading by example. I honour his strength. The draft legislation as it stands authorises this Liberal-National party government to steal money from disabled workers. On behalf of Tasmanians, I will not and cannot be a part of that sad, unjust state of affairs.

This is just another attack on vulnerable Australians by this government. I would have thought that after the budget last year they would have learnt their lesson—but obviously not. 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, they are carers, or they are sick or have a disability. This pattern of behaviour needs to stop. Today we have seen this Liberal government's attack on the vulnerable continue: the cleaners of Parliament House are on strike for 24 hours, because of a mean and tricky Liberal government deal which will see most of them lose up to $6,000 per year, or $100 per week. I met with these great Australians and I just cannot understand why the Liberal government wants to hurt them—let alone take more money from them—when they are some of the lowest paid workers in Australia. The same can be said of members of our defence forces—and by the way you still owe them one per cent—who, like the victims of the BSWAT rip-off, are victims of a dud deal. They are largely voiceless and vulnerable, and the Liberal government has taken advantage of that fact and denied them a fair pay rise and back pay.

This display of arrogance and just plain cruelty—to the BSWAT victims, to the cleaners and to the defence victims—comes at a time when we hear that this government has authorised massive cash payments to people smugglers. There is now no doubt that these smugglers are criminals responsible for murders, rapes and gross human rights abuses. But the Abbott government is happy to shower international criminals with cash, while denying our BSWAT workers, our cleaners and our diggers a fair deal.

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 we have 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 to $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 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 to a worker without a disability as well as on 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 in their jobs. The Commonwealth then appealed to the High Court and lost that case and—God knows—I would love to know how much the Commonwealth has paid out so far and how much it is going to continue to pay out.

The result of this appeal made it clear what the court thinks: BSWAT discriminates against workers with intellectual disabilities—so you have been told by the courts, you have been told by the Senate, and yet you are still running off your same old ideas. This appeal also made it clear that the same ruling would 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 to fairly compensate them for the work they have completed. This court case is seeking full back pay for all members, and is in line with the decisions the courts have already made on this matter.

In closing, I bring to the Senate some comments and feedback my office has received from Mr David Cunningham, who is a co-creator, producer and host of the Dangerous TV project. Mr Cunningham made these five powerful points: first, workers with intellectual disabilities are just as entitled to a decent wage and salary as any other similar worker doing the same job in Australia; second, workers with intellectual disabilities are amongst the most vulnerable workers in the nation's workforce as they have no recognised union to properly represent them; third, the government's actions on this issue did not match up with their actions in relation to the NDIS and other disability issues—we are going down a very dangerous path here; fourth, the government's apparent willingness to defy an order of the High Court demonstrates their contempt for the legal processes of this country, and further demonstrates their sinister attempts to pervert the course of justice; and five, the government's apparent use of dirty fear tactics to attempt to scare the parents and families of workers with intellectual disabilities from seeking and securing redress is totally and utterly abhorrent and should be rejected outright.

I oppose the legislation as it stands but, as I indicated, I will support foreshadowed amendments which guarantee a quick, part payment of approximately 60 per cent—because I can assure you people are doing it very tough out there, let alone these people here. If I can deliver that 60 per cent tomorrow, I will be very grateful to be able to do that—but they will get the choice to go after the rest of their money. That is the very least we can do. As a matter of fact we should not even be put in this position, because you owe them 100 per cent of that money. It is your own integrity that has sunk to the lowest today. I think that about says it all. Should those just and decent amendments fail, I will vote to oppose the bill, as I have said. That is common sense and that is a fair thing to do. That is giving a fair go. That is the Australian way. I urge fellow senators to vote in the same manner.

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

I thank Senator Lambie for her contribution. I think it is important to recap a little on the history and the creation of the BSWAT tool. The BSWAT tool was developed by a range of parties in good faith. It was developed through consultation with advocates, with unions, with a range of stakeholders. At the time the BSWAT tool was developed, it had broad support and broad confidence. This was not something that the Commonwealth created in isolation. There was strong involvement of unions, advocates and others. I think it is also important to recognise that almost no-one is suggesting that there is not a role for pro rata wage tools. The matter which is before Fair Work Australia at the moment in the development of a new wage assessment tool is what is a more appropriate pro rata wage assessment tool that enjoys broader confidence. The BSWAT is not the only wage assessment tool that has been used in disability enterprises. There will continue to be pro rata wage assessment tools in recognition of differing productivity of individuals.

I should also make clear, again, that there has been no court ruling on the BSWAT as a whole. The court ruling specifically related to the application of the BSWAT tool to two individuals—Mr Nojin and Mr Prior. Also, the High Court has made no determination in relation to these matters. The High Court did not grant leave for an appeal, so the High Court has not considered these matters. No court has made any determination, ruling or finding in relation to payment.

In relation to our payment scheme, no-one knows what wage assessment tool would have been used in the absence of the BSWAT tool. No-one knows what the counterfactual is. If the BSWAT tool had not been used for 10 years, no-one knows and no-one can say what wage assessment tool would have been used. This is why the Commonwealth has come up with a formula that will guarantee that people are paid more than they were paid—because we do not know what wage assessment tool might have been used if the BSWAT did not exist. That is why the Commonwealth has had to come up with a formula. We have come up with a formula that will ensure that people get paid more than they were paid. That is what this bill is all about—giving people more money than they have received in the past.

A number of colleagues have raised their conversations with families and advocates. It would be fair to say that through my role as the minister for disabilities I would have as many conversations with families and advocates as anyone in this place. I have spoken to plenty of families and individuals who think that the payments scheme is a good idea. I take on board what they have said to me.

In relation to the representative action, I do not know if the representative action will be successful or not. If the representative action were successful, I do not know if the court would determine that people should be paid more, less or the same as the payment scheme. No-one knows that. What we have sought to do in this environment is to come up with a formula that will pay supported employees who have previously been assessed under the BSWAT more than they were paid before. That is what this bill is all about: it is about giving more money to supported employees who were previously assessed under the BSWAT.

I also think it is important, when looking at supported employees in disability enterprises, that we do not just look at the pro rata hourly rate that the individual is paid for their work in isolation. People in disability enterprises in effect receive a package of supports. They receive the hourly rate. They receive the disability support pension. They likely receive a Commonwealth health benefits card. They also have the support of the staff in the disability enterprise. The Commonwealth, on behalf of the community, puts about $200 million into disability enterprises, essentially to help with the costs of the staff who support those supported employees. So you really have to look at the package of supports that an individual receives in the disability enterprise. What we are seeking to do is to enhance the package of supports. We are seeking to enhance the package of supports through this payment scheme, which will see individuals receive more money for their past work. We are also seeking to enhance the package of supports for individuals by creating, under the auspices of and with interested stakeholders, a new wage assessment tool. As I have indicated, it is highly likely that that will lead to higher pay, which is why we have the $173 million fund to help in the development of that wage assessment tool and also to help with the transition costs for disability enterprises.

So everything we are seeking to do as a government here is about enhancing that package of supports. We are not seeking to take anything away from supported employees. To the contrary: we are seeking to enhance their previous situation and we are seeking to enhance arrangements for them into the future. This legislation only seeks to provide more for people who have been assessed previously under the BSWAT. It does not take anything away. This seeks to provide more. We do not know what the outcome of representative action will be. But obviously people are perfectly entitled, as they should be, to pursue that option if they want to. I thought it might be helpful for colleagues to respond to some of the points that Senator Lambie raised.

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

Thank you, Minister. But, in terms of the process, you are taking away. You are taking away people's options to have legal scrutiny of their process—that is, you have been very voluble with all the things that will be enhanced in this process, and that is acknowledged. We had that process. We still do not know what the result of the new tool will be. You rightly said we do not know. Nothing about having a choice to take legal action stops having that option either. The actual closing down of choice, of options, is by this legislation. You said it was an untidy process and that it was uncomfortable. Well, at what cost and to whom? The amendments we are putting forward can work. There is nothing illegal about them.

I have two questions before we go to the process of the vote. Critical to informed choice was the provision by the government of enhanced packages around legal advice and financial counselling advice. At the time that we looked at this discussion earlier, there were no details around that. We raised concerns at our inquiry about what the options would be across the country for having firms and support that would be able to effectively deal with the sensitivities of people who have intellectual disability and their families, who are fearful for that. Can we have any information about what progress the department has made in making sure that those options will be there in the process of making a decision?

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

The choice as to which firms an individual goes to in relation to legal and financial advice will be one for the individual and their family. The government will require the furnishing of a certificate that demonstrates that the individual has sought independent legal advice and also that they have sought and obtained independent financial advice. The choice as to the entity from which they seek that advice will be a matter for individuals.

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

Minister, we asked questions directly at the inquiry about the scrutiny of the quality and the competence of the financial advice and the legal advice, and we could not get an answer. The range across the country is so varied. Will this advice be available locally for workers and will there be any monitoring or accounting of the experience of the providers and whether they have any background in dealing with people with intellectual disability?

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

In the case of legal advice, they will have to be registered legal practitioners. In the case of financial advice, they will have to be registered financial counsellors.

The CHAIRMAN: The question before the chair is that government amendments (1) to (6) on sheet EH170 be agreed to.

Question agreed to.

The CHAIRMAN: Senator Fifield has also moved government amendments (1) to (22) by leave together on sheet HK115. We have traversed all those amendments in the discussion as well, so I now put the question that those amendments be agreed to.

Question agreed to.

The CHAIRMAN: Senator Moore, we will now proceed to your circulated amendments.

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

Our amendment (9) is no longer required, because the government's amendment has overtaken it. It is the amendment about supported decision making. I table a statement of reasons.

The CHAIRMAN: Is leave granted for Senator Moore to move amendments (1) to (8) and (10) to (24) together?

Leave granted.

by leave—I move:

(1) Clause 3, page 2 (lines 21 to 27), omit all the words from and including "accepts the offer" to and including "continue unchanged", substitute "accepts the offer, the Secretary will make the payment to the person".

(2) Clause 4, page 3 (line 14), omit "matter referred to in subsection 10(2)", substitute "possible ground for compensation".

(3) Clause 4, page 3 (line 17), omit "matter referred to in subsection 10(2)", substitute "possible ground for compensation".

(4) Clause 4, page 4 (lines 14 and 15), omit the definition of group member.

(5) Clause 4, page 5 (after line 1), after the definition of payment amount, insert:

  possible ground for compensation has the meaning given by section 10.

(6) Clause 4, page 5 (lines 9 and 10), omit the definition of relevant representative proceeding.

(7) Clause 4, page 5 (lines 11 and 12), omit the definition of representative party.

(8) Clause 4, page 5 (lines 13 and 14), omit the definition of representative proceeding.

(10) Clause 5, page 6 (line 7), omit "person;", substitute "person.".

(11) Clause 5, page 6 (line 8), omit paragraph (c).

(12) Clause 9, page 8 (line 23) to page 9 (line 23), omit the clause.

(13) Heading to clause 10, page 9 (line 24), omit the heading, substitute:

10 Possible ground for compensation

(14) Clause 10, page 9 (lines 25 to 34), omit subclause (1).

(15) Clause 10, page 10 (lines 1 to 3), omit "(2) The matters are the following, to the extent to which they relate to the use of a BSWAT assessment to work out a minimum wage payable to a person", substitute "Each of the following matters is a possible ground for compensation for a person, to the extent to which it relates to the use of a BSWAT assessment to work out a minimum wage payable to the person".

(16) Clause 19, page 17 (line 8), omit "involve;", substitute "involve.".

(17) Clause 19, page 17 (line 9), omit paragraph (2)(j).

(18) Clause 38, page 30 (line 16), omit "person; and", substitute "person.".

(19) Clause 38, page 30 (lines 17 and 18), omit subparagraph (c)(iii).

(20) Clause 38, page 30 (lines 19 to 21), omit the note.

(21) Clause 39, page 30 (line 22) to page 31 (line 3), to be opposed.

(22) Clause 67, page 47 (line 12), omit "where an amount is wrongly paid to a person, the amount", substitute "an amount".

(23) Clause 67, page 47 (line 15), omit "the person", substitute "a person".

(24) Clause 98, page 64 (lines 19 and 20), omit "matter referred to in subsection 10(2)", substitute "possible ground for compensation".

I think we have traversed a lot of the arguments in the previous discussion. We stand by the principle that we believe that people should have the option to seek redress. In this case, we note that this bill takes away that option for workers who take the decision—we believe the informed decision; we are not quite sure how that informed decision will be made—that they will exclude themselves from taking the option of a legal process. We do not believe that is an appropriate option for the people who have put their faith in their employers and in the government. There has been great interest in this, and I take the point that there has been discussion around these issues for several months, and people have been having meetings and talking about it. Nonetheless, for this particular group of workers, whilst this bill gives them security in some way, with some enhanced money—and no-one doubts that, and that is something the government has decided to do—it in effect says, 'If you take this, you cannot be involved in the legal process,' which is looking at putting a test on their conditions and on the way they are employed by the independent court process.

We heard from minister earlier that there are a great many unknowns in this process. We do not know how the new model will operate. We have not seen it. We do not know exactly how the different employers will implement the model. We do not know whether taking up legal action will bring a better result in terms of employment, wages and conditions than not taking it up. What we do know is that this bill does say, 'Take this and that'll be all you get. Take this; it's the only option you have.' It closes down the clearly discussed option that is out there in the community at the moment through the legal case which argues that there is an opportunity to have this tested. In some ways it actually weakens the legal case. We have discussed this at length in our committee: if people are pulled away by accepting the money in hand because it is an attractive way to have their wage increased. As Senator Lambie said, for people who are getting less than $2 an hour, any increase is attractive—any increase at all. If you pull people away from being part of the legal case, you are detracting from the strength of the legal claim. The important thing is to see how this particular form of wage operates effectively for individuals in the workplace. It is also important to see whether it is a fair response to the work they do and whether it is a fair response to the relationship they have with their employer—something that most people should be able to do without any question. However, if you are among this group of employees, employed in this way, this particular bill says: 'No, you can't do it, no matter the outcome received by other people.'

At the moment there are only the two individuals who are brave enough to work with their legal representatives to test their own working conditions. We only have the results of those two upon which we can base any future discussion. We know that every individual is going to be different. By passing the bill without the amendments that we have put forward, you close down that option for so many workers. We do not believe that is an effective way to work with this group of employees. We believe that the good work that is being proposed by the government by providing support around financial advice and legal advice would only be enhanced if that same advice could be taken for future legal action. In fact, we would be helping those workers to see what would be best for them. We have a range of amendments, though one of those amendments is no longer required—the one about supported decision making. As we have already passed the government's amendment, we will not be pursuing that amendment. I am just checking which particular amendment it is, but all the rest—which are effectively about giving people an option they deserve to ensure that they will get the best possible wage for the work that they do—stand.

We stand by the position that we brought to this place last year: that there should be a way for people not to have that opportunity closed but they should receive the benefit of the government payment, which acknowledges that they could well have been paid incorrectly as a result of the tool. That should be their right, because they are employees in this industry. By bringing forward this legislation, the government feels it is a fair thing to say to the workers who are employed in this industry, 'We think you should have a re-assessment of your particular wage situation and be paid accordingly.' To get a payment through the process is fair, but it is not fair to link that to closing their options to be party to a legal process. Our amendments make sure that that option is returned to the workers, that they are not closed out of that process and that they are supported to have a free choice in ensuring they have the best possible employment conditions and they are part of the decision making so that it is not imposed upon them.

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

The Greens still oppose this bill. We do not believe it is fair; we believe that it in effect continues the discrimination that has occurred through this particular tool. One of our concerns with the bill is the fact that people are forced to take one option or the other. We do believe that this amendment addresses some of our concerns with this process, and so I indicate that the Greens will support this amendment, given that it does enable people to have what the minister says they already have, but they do not have with this bill, and that is choice. I remind people of the comments I made earlier on the NDIS: in that process people can access both schemes—and I know it is quite a different process—but they can and in fact are required to. In this case, people should not be forced to accept poor compensation for the loss, or underpayment, of wages or the loss of opportunity those wages would have afforded them. This does allow them to take action through the courts, and so we will be supporting it.

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

I should add that our advice is that, when a court determination is made, the court will take into account prior payment. I know the minister said earlier that that is unknown and it might happen. It is our understanding that, in a case looking at wages of this kind, the court will take into account the previous wage situation—it will be a natural process of the court—and so it will not be left to this great unknown. It is natural court practice.

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

I will just respond to some of the points Senator Moore raised. I never doubt that Senator Moore has full confidence in every statement she makes to this chamber, but I am not sure that the opposition is in a position to speak on behalf of the courts in relation to what they may or may not take into account. Tempting as it may be to rely on senators to speak on behalf of courts, it is probably something that would not broadly sit well with the chamber. I will just make that point.

In relation to a payment scheme versus representative action, I also think it is important for colleagues to know that the BSWAT payment scheme is based on the circumstances of an individual. How many years they were employed and what they were paid is taken into account. In the Maurice Blackburn litigation, the choices that are taken along the path of the litigation are made by the lead applicant. Let me repeat that: the choices that are made along the path of the Maurice Blackburn litigation are made by the lead applicant.

Also, we do not know what form the model of any payment arrangements that may ensue from court decisions may take. We do not know if the decision may be to pay the same amount for every employee regardless of circumstances or whether in some way the payment will be tailored for the circumstances of the individual. That is something we do not know. But what we do know is that the BSWAT payment scheme will be tailored to the individual circumstances of each supported employee. The lead applicant in the Maurice Blackburn representative action makes the calls on the key decisions along the way. We do not know what the model will be if the representative action is successful. We do not know whether it will be the same amount for everyone regardless of their circumstances or if it will be tailored.

That is why I keep emphasising that the BSWAT payment scheme provides certainty for individuals. They know that their particular circumstances will be taken into account. They know that they will get a definite amount of money. They know that their legal advice and financial advice will be paid for by the Commonwealth. I know for absolute certain that if this legislation does not pass then there will be an option that is denied. Again, I struggle with the contention that presenting an option which does not presently exist is in some way denying choice. No, it is giving an option that does not exist currently.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

I advise the chamber that this batch of opposition amendments needs to be put as two separate questions. The first question to be put is that opposition amendments and requests (1) to (8), (10) to (20) and (22) to (24) on sheet 7700 be agreed to.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question now is that clause 39 stand as printed.