Home - Claire Moore - Labor Senator for Queensland

BILLS - Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016 - Second Reading

Senator MOORE (Queensland) (12:45): 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.