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

I rise to speak on the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016. This bill amends the Business Services Wage Assessment Tool Payment Scheme to provide a higher payment to people with disability who were paid an unfair wage under the previous tool. This issue, as most people in this chamber know, has a long and quite complex history. It is important, when we go through the process to pass this bill, that we understand some of that history.

The Business Services Wage Assessment Tool, otherwise known as BSWAT, has been used to determine the wages of people with disability working in Australian disability enterprises. There are about 20,000 Australians employed at Australian disability enterprises. Supported employees working at these organisations are paid a pro rata wage, calculated using a number of different wage assessment tools, of which BSWAT is one. About 10,000 workers with disabilities were assessed using BSWAT. So, on the figure of 20,000 in total, 10,000 is a significant number.

In 2012 the Federal Court found that this particular tool indirectly discriminated against people with intellectual disability. This was because BSWAT assessed the competency as well as the productivity of the employee, meaning a person with intellectual disability was paid a lower wage on the basis of their intellectual impairment. Following this ruling, a class action was brought against the Commonwealth on behalf of supported employees seeking back pay for the wages they had been underpaid as a result of being assessed under a discriminatory tool.

While this class action was underway, the government introduced legislation to set up this payment scheme. The scheme offered back pay worth 50 per cent of the difference between what workers actually received under BSWAT and what they would have received if the competency component of the tool had not been included. Labor opposed the original bill, not because we do not support a payment scheme—we actually do and are on record as doing so—but because the Federal Court found that these supported employees were indirectly discriminated against because of the type of their disability. They were paid a wage that was based not on productivity and performance but on ignorance. Of course we support justice for them. Ms Macklin, in the other place, has made it quite clear that the focus is fairness and justice. Of course we support a payment scheme to help compensate for the wages that were lost.

Labor opposed the original bill because it unfairly silenced people with disability. It meant that people who accepted a payment under the scheme were precluded from pursuing further legal action for lost wages. As we said in this chamber, it was wrong for the government to deny the legal rights of people with disability at exactly the same time as the class action was underway. People with disability denied justice and denied wages deserved their day in court. Labor came to this position after listening to the views of people with disability and their advocates and as well as after an extensive Community Affairs Legislation Committee inquiry hearing on the legislation, where we were able to hear a range of evidence which looked at the issue of exactly what was fair.

People with disability did not support the original scheme and the onerous conditions it placed on them. So Labor opposed it. We were guided by what people with disability wanted. It was true then and it is true today. This important legal process has now been completed. Labor welcomes the settlement that has finally been reached between supported employees and the Commonwealth. The settlement means that thousands of workers with disability will get fairer back pay for the wages they were denied—a much better deal than would have been the case if this class action had not proceeded and the original payment scheme had been left in place.

Under the settlement, people with disability who were originally paid wages under BSWAT will be paid 70 per cent of the difference between the wage they received and the wage they should have received. The original act needs to be amended to reflect the agreement that has been reached. The Federal Court will then be in a position to approve the mediated settlement, and that is the purpose of this bill today.

Now that people with disability have reached this settlement—an agreement that I am assured they are happy with and an agreement that actually involves them—we support this legislation to give effect to the settlement. Once this happens, those who were involved in and supported the class action can apply for payment under the scheme. Those who have already received a payment under the existing scheme will receive an automatic top-up to reflect the better deal reached under this settlement.

Importantly, the registration period for the scheme will be extended by 12 months to give people more opportunity to apply for a payment. This was a really important element of our concerns with the original legislation when it came into this place. We were deeply concerned about the time people had to make such an important decision which would impact on their lives. This is an issue that was raised by many families as well.

Labor is pleased this issue can finally be resolved and that people with disability can receive a fairer wage for the work they performed. These payments will reflect historic indexation and will not be assessed as income for social security purposes—another point raised in previous debate about whether any payment would then count as income for social security purposes. So the department and the ministry have clarified that.

On behalf of the opposition, Ms Macklin and I want to pay tribute to the two individuals who initially challenged the validity of this wage assessment tool and the thousands more who subsequently joined them in the fight for fairer pay. Always, it seems, there need to be some individuals who have the courage to step forward, and in this case we deeply appreciate their work. I also want to acknowledge the many organisations and advocates who stood with the employees and supported their cause. We can now move on from what has been a very difficult process over very many years and we can focus on the other issues in this area that are yet to be properly addressed.

While this bill goes overdue justice for some supported employees with disability, it does not end the ongoing uncertainty surrounding the future of Australian disability enterprises and the very cause of supported employment. The government is developing a new productivity based wage assessment tool to replace BSWAT. We have been waiting a while this tool. I understand this work is still being progressed through the Fair Work Commission. Again, it is important that this work is finalised as quickly as possible. I urge the minister to make it a personal priority. The sooner we can get an unambiguously fair assessment tool that will ensure that people with disability are being paid a proper, non-discriminatory wage, the sooner we can end the financial and legal uncertainty that is shrouding this sector. This will be better for people with disability and their employers.

The government must also address the concerns regarding wage supplementation for Australian disability enterprises. Opposition members have received several troubling reports from our local organisations, reporting that this process is unwieldy, lengthy and inadequate. Alarmingly, some Australian disability enterprises have told us that they are hundreds of thousands of dollars out of pocket after their wage supplementation payments. This is placing some of these enterprises in immediate financial jeopardy. We know this because many of them have come to visit us to talk about the issues they are facing. Some of these organisations have been working in local communities for many years. There is a particular relationship between some of the enterprises and their local communities, and there is a sense of ownership in many areas. In my own part of the world, on the Darling Downs, there are a number of these enterprises and they are part of the make-up of the community. We know that they are in serious financial stress in some areas.

Labor believes that government can do more to support and reassure the sector, and that more must be done. The interests of people with disability are best served by having a sustainable Australian disability enterprise sector capable of paying fair wages. This is what the government should aim to achieve. The truth is that we can do more to ensure that people with disability are full participants in the community. Too many people with disability want to work, and can work, but are just not given the opportunity to. From OECD statistics we know that Australia continues to have one of the lowest employment rates of people with disability. We know that we can do better. It is just not good enough, both for the people with disabilities and for their families—or in fact the message that is being sent to the wider community.

Too many people with disability live in poverty and disadvantage. As you know, over many years our Community Affairs Committee has held various hearings and inquiries. Consistently, when we are speaking about disadvantage people with disabilities tend to suffer greater in regard to the lack of opportunity for education and employment. In fact, the poverty statistics are alarming, and they continue to be. Too many people continue to live on the margins of society, isolated and alone. We know we can do more.

The National Disability Insurance Scheme is a big part of this. I want to acknowledge the work that my friend Senator McLucas has done over way too many years on both the development and the implementation of the scheme. We know that that will be only one part of the area around support for people with disabilities. While the NDIS will transform the lives of hundreds of thousands of Australians, many more people with disability will still need our support as they too can reach their full potential so that they can have the opportunities that are available, and should be available, to all Australians. It is for this reason that Labor believes the National Disability Strategy must be reinvigorated to ensure its goals reflect the goals of Australians living with disability; to ensure our efforts stretch across every area of policy-making; and, to ensure we implement these strategies and not just continue to talk about them. No, I think we in this place should continue to talk about the issues around disability as many times as we can to ensure that people with disability do not feel either forgotten or marginalised.

It is important that the wages that people with intellectual disability deserved but were deprived of will finally be received. In the final analysis, this issue is about much more than a wage. It is about respect. It is about whether we can respect the capabilities and contributions of people with intellectual disability. It is about whether we value their work and whether we recognise them as equal members of society. It is also about whether we engage with them on issues that impact on them. Again, the ongoing motto of the consumer network can be repeated: 'Nothing about us without us.' With this settlement we can go some way to restoring not just the wages but the respect that people with intellectual disability have been denied. It is a good time that we are able to say that this particular piece of legislation will be passed in this place. But, it is only a step towards the ongoing work that must be done in this space. It is a good time to pass the bill. We can say that we are willing and happy to ensure that the Business Services Wage Assessment Tool Payment Scheme Amendment Bill will be passed into law.

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

It is with pleasure that I stand to speak on the Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016. I too will refer to it as BSWAT from now on. This issue has been ongoing for a long time—in fact, for too long a time—which means that people with an intellectual disability who have been underpaid under successive governments have had to wait to get this back-pay and to get their issues around underpayment addressed.

Workers with disability have been underpaid and they have been trying for many years to get this issue remedied and addressed. In fact, they have had to take the matter to court to have it addressed. Personally, I think it is a great shame that they had to take it to court. It should have been dealt with a while ago. We have debated the previous bills, and I will come back to those bills in a minute.

People with an intellectual disability are significantly underrepresented in the workforce and it is important that we address this issue. Inclusion Australia has said that workers with an intellectual disability face large gaps in support for helping them to move into open employment, earn a real wage, and reduce their reliance on the pension. It is my contention that if they had been paid appropriate wages, and not underpaid, that would have helped people move into open employment. We do need structural change to the system and we need significant changes that will genuinely help workers with an intellectual disability. Increased participation should not occur because of reduced wages. This discrimination is unacceptable, and I am glad to see that the court system found that the BSWAT wage was discriminatory for workers with an intellectual disability.

We are deeply concerned that it has taken some time to work through various processes to get to the point that we have, but I am glad that we are finally there. Concerns were raised by a number of stakeholders, including Inclusion Australia, People with Disabilities and the AED Legal Centre about the process and about the tool being fundamentally flawed. That is why I am glad we are debating this bill today, which addresses issues around the previous bill. The earlier bill, the BSWAT Payment Scheme Bill 2014, was unacceptable. As we have just been discussing, and as Senator Moore has just been saying, people would have been forced to waive their legal rights to access payments. The bill only covered people with an intellectual disability, not other workers who might have been underpaid in the same ADE. It only offered up to 50 per cent of what was already owed. I spoke strongly against this in the parliament, and I outlined then how it was not supported by workers and advocates, who were strongly urging us not to pass that bill.

Fortunately, those fighting for justice on this issue have now been successful. The changes in this bill—given it is non-contro I hope it will succeed and pass through this place shortly—can provide the basis for a settlement. There are some key differences in the current bill from the previous version passed by this place. Payments will be calculated at 70 per cent, not the full 100 per cent but an improvement on the 50 per cent that the government previously tried to impose. This is supported by stakeholders. The bill extends the date for registering, applying and accepting under the payment scheme by 12 months, to May 2017; the payments will be provided in a lump sum which is exempt from social security income tests; and a tax offset will be available. This means that people who have been discriminated against will receive the payments they deserve. I am glad to see that the government is extending the date by which people have to enrol in the scheme. This was one of our concerns with the previous bill. Under the government's previous bill, people would not have been able to take as much time to make a careful choice, so we think extending the time frame is a good step. It will give people a little more time to make their choice.

I am also glad that people who previously received the 50 per cent payment can obtain a top-up. We understand that because of the uncertainty involved in the court case, some people accepted the government's 50 per cent payment offer—which of course was the government's intent. Fortunately the findings of the court have required a different approach. I am glad that people who received the 50 per cent payment will be able to receive an increased payment to reflect the 70 per cent rate in the settlement. The measures in this bill will depend on the terms of the settlement being agreed by the Federal Court. After this bill passes the parliament, if the Federal Court agrees, the parties can reach a settlement. This is an important step in resolving this issue. This is not the final step in the process, but it is a very important one and I am pleased the government has acted in a timely manner and that therefore we can deal with this matter in this place in a timely manner also.

Maurice Blackburn Lawyers, who have been running this case, have urged the parliament to support this bill. Disability Advocacy Network Australia is supportive of the bill, and People with Disability Australia said:

People with disability Australia … and the AED Legal Centre have warmly welcomed this decision by the Federal Government and hailed it as a win for employees with disability.

Samantha French from PWDA said:

We would have preferred the Government came to the table a lot sooner, rather than drag this through the courts, but we are pleased to have an outcome which sees wage justice for these employees.

The AED Legal Centre said they welcome the Commonwealth's offer, and they go on:

We think this is a great outcome for all supported employees eligible for a payment under the BSWAT Payment Scheme.

I would like to take this opportunity to congratulate the people who have pursued this case to this point and who have put up such a strong case and kept fighting for this outcome. It has been a long and difficult court process for the employees, the lawyers and the advocates. They have done important work in supporting people with an intellectual disability through this process and in continually raising the profile of this issue. It is disappointing that governments took so long to reach this point. People who have been underpaid should not have been made to wait this long. They should not have had to fight their way through the courts. Because the government held out on paying people what they deserved, they have missed out. As I have said in this place before, imagine how much better people's lives could have been if they had had access to their proper wages, to this money, earlier. I must say this is not the only example in this country of, in effect, stolen wages—it is a bit different from stolen wages but it has the same impact on people's lives. It has taken years for the government to take action and people have had to face many challenges to recover this money. It is a very good example of when people see an injustice and discrimination and they keep fighting they get a resolution. I think people should be very proud of the work that has been undertaken and the collaborative approach that has been taken in getting this outcome.

I share concerns about progress in developing the tools that will replace BSWAT. We need to make sure that they are there for people with an intellectual disability. We will continue to keep a close eye on the process. It is good to see that people will be getting the wages and the back pay they deserve. We strongly support this bill and commended it to the Senate

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

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

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

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

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

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

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

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

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

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

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

The bill provides a top-up payment for persons who have already received a 50 per cent payment under the BSWAT Payment Scheme. It removes the current compulsory requirement to obtain legal advice before any payments are made. It extends all relevant scheme dates by 12 months. It clarifies certain administrative arrangements and enables a deceased person's legal personal representative to engage with the payment scheme on their behalf. On that basis, Labor can agree to this bill.

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

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

James McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | Link to this | Hansard source

I thank senators for their contributions and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.