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

I rise to make a contribution to the debate on the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendment) Bill 2014. The Greens are deeply concerned about these bills and oppose them not because we do not think this is an important issue; we do not think the measures contained in the legislation are fair to those in the workforce who have a disability, particularly those who have an intellectual disability and who have been underpaid for a consistent period of time. This issue has been on the agenda for a long period of time. I acknowledge that this is a problem that the current government inherited and under the previous government and previous to that, under the previous coalition government, this is an issue that has been raised for quite a long period of time. Because it was not adequately addressed by previous governments, we have seen the court cases that have been referred to in this place.

People with a disability are seriously underrepresented in the workforce in Australia and those with an intellectual disability especially so. With only 6.9 per cent of working age people with an intellectual disability reporting work in the open labour market, it is clear that workers with an intellectual disability face, as Inclusion Australia have said:

… large gaps of support to help them move into open employment, earn a real wage and reduce their reliance on the pension.

Structural change is required. We need better strategies and legislation to encourage and support a greater participation by people with disabilities in the workforce. We know that this has been a significant issue for a period of time. In fact, we know participation even in the Public Service for people with disability has decreased.

We need increased participation by people with disability in our workforce. However, discrimination against workers is completely unacceptable and this increased participation should not be through reduced wages. The Australian Greens are committed to equal pay for equal work and are very concerned with the distressingly low payments made to people with an intellectual disability who have been assessed under the Business Services Wage Assessment Tool, BSWAT, and do believe this issue needs to be addressed. BSWAT has been found by the High Court to be discriminatory towards workers with an intellectual disability. The Human Rights Commission also finds that BSWAT is an unacceptable tool and concerns have been raised by a variety of peak disability and legal bodies, including Inclusion, People with Disabilities and AED legal centres.

This bill does not adequately address the continued discrimination of workers under BSWAT and we have some key concerns regarding this bill which we did articulate in our dissenting report on this legislation. We are concerned that a payment rather than a compensation is being offered. We are concerned that people have to waive their legal rights to access the payment. We are concerned about the conflict of interest that arises around the power to appoint nominees. The Australian Greens are also concerned with the fact that the bill does not extend to workers with a disability who do not have an intellectual disability. We support the concerns expressed by PWD at the hearings into this legislation, where they said:

Only people with intellectual disability will be eligible for the payment scheme. A person with psychosocial disability, for example, may work in the same ADE, do the same job and earn the same wage as a person with an intellectual disability but they have been excluded from the payment scheme. The Commonwealth's failure to recognise the violation of rights that people without intellectual disability have experienced will continue.

In terms of accessing payment, approximately half of Australian disability enterprises, ADEs, use BSWAT which means there are currently around 10,000 people who have been assessed using the BSWAT model. This bill offers a potential payment of up to 50 per cent of what is already owed on completed work in exchange for workers losing their right to seek a fair pay settlement—in other words, for 50 per cent of what workers are entitled to they will be asked to sign away their legal rights. Only pay 50 per cent of what they are entitled to is unacceptable. There should be full compensation for unpaid wages. In addition, the lost opportunity of what people could have purchased with their rightful wage is not addressed.

This is a similar situation to an issue that I have spoken on in this chamber previously—that is, the stolen wages of Aboriginal and Torres Strait Islander peoples. One of the issues that came up during that Senate inquiry quite a long time ago was what they could have achieved if they had actually had access to the wages that were stolen from them in the first place? The same concept applies here. What would people with intellectual disability have been able to achieve and bought with the money that they would have earned if a fairer tool had been used and they had not been discriminated against by the BSWAT tool? They may have been able to get better accommodation. They may have been able to get extra training and support. They may have been able to get better accommodation. Opportunities were lost because people were not paid adequately.

The Australian Greens are very concerned about the tight time line that people have to decide if they wish to pursue the payment, which will mean that people will not be able to adequately weigh up all their options to make a decision in their best interest. We are also concerned that there are inadequate provisions being made to ensure that all those affected are aware of their choices and the consequences of decisions. This legislation could lead to unfair outcomes for underpaid workers. There are also inconsistencies between payments, for instance:

A person who is found eligible and is made an offer of payment this year will receive less than if they apply to the payment scheme next year as they would have been working under the BSWAT for longer. This will create unequal outcomes and is unfair.

That was a point that was raised by People with Disability during the inquiry.

There have been discussions around the appointment of a nominee, and we are still not satisfied with the provisions in the bill. The provisions allow the Secretary of the Department of Social Services to appoint nominees on behalf of unpaid workers without their consent. We believe this is very concerning. As the AED Legal Centre said during the inquiry into the bill:

There is no restriction on who can be appointed and no exclusion of individuals or parties with a conflict of interest.

They went on to say:

The third point—and, in my eyes, the most important—is the right given to the secretary to appoint a nominee to effectively stand in the shoes of the supported employees. This is not only a conflict of interest but removes from these employees their very basic human and constitutional rights. There is a very real danger here that the nominee appointed would or could have a larger picture goal in sight rather than that of the employee

The concern here is the issue around supported decision making, which is vitally important to respecting the rights of people with disability. In the NDIS there are provisions for supported decision making, and there has been significant progress in supporting people with intellectual disability to make decisions. We think this bill does not adequately consider that progress or the provisions to adequately support someone with an intellectual disability to make a decision. Ms Sands from People with Disability made this point during the inquiry:

So really the whole provisions in this act around appointing nominees are completely in opposition to respect for supported decision making and respect for a person's right to legal capacity.

Then the AED Legal Centre, who have done a tremendous amount of work on this issue—and I want to take this opportunity to congratulate them on the work that they have done in supporting people with intellectual disability through this process and in raising this issue—went on to say:

There is a conflict of interest, first, in having the secretary being able to appoint a nominee. As to the nominee themselves, the role of that nominee raises the concern that it could be, potentially, a conflict of interest.

This bill does not adequately safeguard and ensure people's legal rights are protected. It does not adequately provide for a person's supported decision making.

We are also concerned about the argument that has been brought up about the viability of ADEs. I acknowledge financial support for ADEs to transition. However, I am still hearing the argument about the viability of ADEs. Quite frankly, it is a fallacious argument. I am not here commenting on the work that ADEs do, but it is not appropriate for them to argue about their viability by arguing that people with intellectual disability should have lower wages to ensure the viability of ADEs. That argument does not wash. Those sorts of arguments have been used in the past to deny and to excuse poor wages for others. It is not acceptable that they use that argument. ADEs are an important part of work opportunities for people with disability, in particular as an initial workplace so that hopefully they can transition to more open employment. They offer support and employment that are very much in demand. During the inquiry, the viability of ADEs to survive if they had to pay the non-discriminatory wage was brought up on several occasions. As I said, while I can understand the concern of ADEs, this is not a valid argument. It is just not acceptable to argue that they should not be paying fair, non-discriminatory wages for the work that people with intellectual disability carry out. The Greens agree with People with Disability Australia that:

… maintaining the financial viability of ADEs is not a consideration that should trump the right of a worker to receive equal pay for work of equal value.

I could not agree more. It is simply inappropriate to mount that argument.

The BSWAT tool has been found to discriminate against workers with an intellectual disability. This legislation does not adequately address the issues that are raised by that issue. We will not support this legislation. This bill does not adequately address the discrimination against workers with intellectual disability. It does not adequately address the issue of compensation. It does not adequately address the lost opportunity of the thousands of workers who have been underpaid using this tool. Governments have known about this for a significant period of time and refused to take action, evidenced by repeated questions in estimates about this tool and evidenced by the campaign run by a number of organisations and people with intellectual disability to get this issue corrected. It has been on governments' agenda for a significant period of time.

Even while the governments—and I say 'governments' because it was the previous government as well—have been prevaricating around addressing this issue and have been in denial about this issue, people with intellectual disability have continued to work under BSWAT and have continued to be discriminated against and suffer lower wages because of the use of this tool, when it was well recognised by everybody else but government and maybe a few ADEs that it was discriminatory against people with an intellectual disability. They continued to be in denial. They continued to encourage its use. And what happened is that people ended up having to go to court to deal with this issue. People with intellectual disability really should not have had to end up in court to get it recognised that this tool was unfair, and they had to continue to work under it. This bill does not adequately address those issues. It does not adequately compensate people and it has some significant flaws, as I have identified here and as Senator Moore has identified.

We will not be supporting this bill, and I also have to say here that we do not think we can support the ALP amendments, because people with intellectual disability and their representatives have indicated that they do not think this bill is flexible. I will repeat here that we have been consistently told by People with Disability Australia and others that this bill is inadequate. These are the people representing people with intellectual disability and they are saying to us that this bill is not adequate. We cannot support a bill where the peak organisation representing people with disability are saying, 'Please do not support this bill,' where the legal advisers are saying, 'Please do not support this bill.' We cannot support a bill that does not adequately address the issues that have been raised by the continued use of BSWAT. As I said, this issue has been on the agenda for a significant period of time. Not for one second do the Greens believe that this issue should not be addressed—it should be—but it should be addressed properly.

Australia has in fact a bad record of addressing the issues of stolen wages, of unpaid wages—making sure that people are compensated for the losses they have suffered. Please do not make this issue for people with intellectual disability another one of those issues. This bill does not address the issues and unfortunately we cannot support it, no matter how much we think that this situation is unfair. We need to actually do the job properly. This bill does not do it.