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

Senator SESELJA (Australian Capital Territory) (12:16): I will start with a response to Senator Siewert. This is not really at the heart of the issue of debating today, because we are talking about a particular scheme, but she seemed to be suggesting that the evidence that we heard—and we did hear evidence in committee that was quite compelling in terms of the viability of ADEs—is somehow not relevant. I think to the broader debate it is absolutely relevant, because if we do not have a scheme, if we do not implement a scheme that enables these disability enterprises to be viable, they simply will not happen and we will not have the opportunities for people with disabilities in these kinds of workplaces. That simply cannot be put aside.


In fact, the evidence that we heard from the likes of David Barbagallo from Endeavour Foundation, who I think he said in evidence is the largest employer of supported employees in Australia, with over 2,100 employees across three states. He and others in that sector have raised serious questions about viability if we do not get this right. So we cannot just put that to one side; we cannot simply just ignore that, because the consequences of that would be that these kinds of opportunities may no longer be there in the future. I do not want to see a situation where that is the case. That is not the fundamental focus of today's debate. What we are talking about is this particular measure in this bill and I will go to that.

The bill seeks to implement a payment scheme for supported employees with intellectual disability whose wages were assessed within a defined period using the BSWAT. Of course, following the recent Federal Court case it was established that the Business Services Wage Assessment Tool used to assess wages had shortcomings that amounted to indirect discrimination. The coalition recognises that there is a need for a system which reflects the concrete and relevant measure of productivity rather than the notion of competency. The BSWAT system will be changed to reflect this need. However—and that is what we are talking about today—the government's immediate priority is to ensure minimal disruption to the employment of supported employees.

The principal rights engaged by this bill are the right to an effective remedy; the right to just and favourable conditions of work; and the right to equality and non-discrimination, including the right of persons with disabilities to be recognized as persons before the law and to the equal enjoyment of legal capacity. The fairness and relevancy of the wage assessment tool will be the focus of the government's future legislation in this area, rather than a focus on levels of wages in abstract terms.

This government is committed to giving all Australians a fair go, a value that is central to the philosophy of this bill. There are around 20,000 workers with disabilities supported by Disability Enterprises in Australia. This bill is an interim measure to see those workers paid fairly and to give them a fair go. This government is serious about its commitment to intellectually disabled Australians and to their ability to make a genuine contribution to society through programs provided by Australian Disability Enterprises. This bill grows out of this serious commitment.

The coalition recognises the importance of supporting intellectually disabled people in their employment. The work that these people do gives them a sense of purpose and a set role within our community. By allowing them to participate in society they are given more control of their lives and a greater capacity to contribute. Their employment directly benefits members of society who are provided with services and goods. Their work helps to drive Australia's economy. Employing people with disability can also build staff morale in the workplace, and increase customer and staff loyalty.

This bill not only benefits workers that were assessed under the BSWAT but the scheme resolves the issue of retrospective liability for underpaid wages. Dr Ken Baker, Chief Executive of National Disability Services, has made it clear:

The calculation of the payment amount will not result in applicants receiving half the amount due to them.

The payment scheme formula says, 'Let's take the rate component'—of the BSWAT—'but let's discount that result somewhat to reflect the limited range of competencies.' An officer for the Department of Social Services has confirmed the payment amount is not related to the issue of productivity but to what the person would have received had the competency component of the BSWAT not been used to assess their wages.

On the legal consequences of accepting a payment, the bill provides choice to eligible applicants. It is the applicant's choice whether he or she receives a payment from the payment scheme. If the applicant accepts an offer, he or she will cease to be a group member of the representative proceedings and will be unable to make any further claims in relation to the assessment of wages under the tool. It is here that the comments of former Disability Discrimination Commissioner, Graeme Innes, are quite relevant and pertinent to this debate, particularly given what we have heard from others. Graeme Innes says this:

... it doesn't take the decision away from people with disability.

They can decide to pursue the matter in court, or they can apply to be eligible for the scheme ... If the scheme is acceptable to the people involved, then it seems to me a much better process to have the money paid to people with disability than paid to lawyers.

I think that that seems a very reasonable point in relation to these bills by former Disability Discrimination Commissioner Graeme Innes—that there is choice; no-one is forced to be part of this scheme. They can be part of an action or they can accept payment under this scheme, and that choice is theirs.

The coalition supports measures to ensure that the person with an intellectual disability is provided with adequate information and advice to make an informed decision. This is made possible through access to legal advice via legal aid and to financial counselling through Commonwealth Financial Counselling, which is funded by the scheme. The department have indicated that they will develop an online catalogue of legal firms which have expressed a willingness to provide advice in relation to offers under the payment scheme. This catalogue will include capacity for a firm to provide a brief outline of their experience, including their experience working with people with intellectual disability. An applicant may also choose to have a nominee, advocate and/or a support person at any stage of the process. To ensure people with disability have the opportunity to provide further information or to raise any concerns, the scheme will also have both internal and external review processes.

Dr Baker said:

… there will be a group for whom it is appropriate to appoint a nominee. There are other protections in the act which I think are there in terms of seeking independent financial advice, independent legal advice, capacity for an internal and external review. All of those add up to what seems to me to be a reasonable range of protections.

The bill attempts, as far as possible, to achieve supported decision making rather than substituted decision making. The provisions in the bill and proposed rules relating to appointments and duties of nominees under the BSWAT payment scheme closely reflect the provisions about appointment and duties of nominees under the NDIS legislation. The rules for appointments will include provisions that identify persons who must not be appointed as nominees. These exclusions include departmental employees and ADEs. Further rules are also being drafted to ensure the preferences of the participant are given appropriate weight. Clause 46 of the bill sets out the duties of a nominee to a participant and the circumstances in which a nominee will be deemed not to have breached those duties.

I think that this bill provides exactly the right kind of balance in dealing with this issue whilst a permanent response to the Federal Court's decision is made. As has been noted by the former disability discrimination commissioner, it gives choice. As has been noted by the likes of Dr Baker, it gives adequate safeguards and adequate protections. That to me seems a very reasonable way forward as we seek to finalise policies and processes which will ensure that we do see a future for ADEs. I do want to see the future viability of ADEs—I think that they have made a great contribution. I think that they have given employment opportunities where those employment opportunities may have never existed. We do have to, going beyond this bill, ensure the viability of those ADEs through good and sound policy.


I commend these bills to the Senate. I think they are an important contribution. I think they provide absolutely the right balance. I look forward to being part of the debate as we settle the other issues that have been raised as part of this discussion.