BILLS;Business Services Wage Assessment Tool Payment Scheme Bill 2014, Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014;Second Reading – 24 Nov 2014

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

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

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

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

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

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

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

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

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

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

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

The ACTU in their submission said:

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

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

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

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

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

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

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

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

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

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

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

Inclusion Australia’s submission to the Senate inquiry stated:

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

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

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