Home - Claire Moore - Labor Senator for Queensland

BILLS: Business Services Wage Assessment Tool Payment Scheme Bill 2014, Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014

Senator MOORE (Queensland) (11:41): We have waited a while for these bills to come into the chamber. People may remember that these bills were actually referred to the Senate Community Affairs Committee several months ago now, for an absolutely urgent turnaround. Our committee had to have hearings on a very sensitive issue and prepare a report to come back to this place, and then the bills have sat. So, it is important to know that they have finally come in to the chamber for consideration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Fifield: Denied our application, which was for three years.

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

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

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

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