Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Hansard source

I thank colleagues for their contributions in this debate on the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and related bill. We are in the situation that we are because of a decision of the Federal Court in relation to two individuals, which bought into focus the issue of the business services wage assessment tool. In saying this, I am in no way reflecting on the previous government. The BSWAT issue was one that the incoming coalition government inherited from the previous government, but in saying that I am in no way, shape or form reflecting on the previous administration in relation to that matter. The business services wage assessment tool was created out of, I think, a spirit of good faith by the government of the day, which was the coalition government back in 2005. There has been nothing but goodwill on display from the unions and all interested parties in relation to how best to support the staff of Australian disability enterprises. Nevertheless, as we are the government it does fall to the government to seek to address the situation that we are in.

Colleagues would be well aware of the important role that Australian disability enterprises play in the nation. All colleagues would embrace the idea that there should be a continuum of employment options for Australians with disability, that there should be the opportunity for supported employment for people with significant needs in a more intensive environment such as an Australian disability enterprise. There should also be the opportunity for people with disability to be in the open workforce with a bit of extra support should they need that. There does need to be a range of options. If you have a significant disability, sadly, in Australia you are probably twice as likely to be unemployed.

As a parliament and as a Senate, we want to do whatever we can to ensure employment options for people with significant disability. I, for one, would not want to see Australian disability enterprises go out of business because of circumstances which may have been unforeseen. There really are two aspects to the matter before us. One is what we do looking to the future and the other is what we do looking to the past. In regard to what we do looking to the future, the government have announced $173 million to assist with the development of a new wage tool and also to assist disability enterprises with transition costs. The legislation that is before us, however, is intended to deal with the past. Without making any judgement on the past, it recognises the fact that there is a representative action afoot and the legislation seeks, in essence, to give a quick and simple alternative to people. That is essentially what we are seeking to do here.

It is important to recognise that the 2012 Nojin decision by a group of advocates representing people with disability related to just two workers not the whole cohort of people in Australian disability enterprises. Whether the BSWAT was discriminatory or not in relation to all ADE workers turns on each individual's circumstances. I think it is also important to remember that Mr Nojin and Mr Prior's legal representatives withdrew their claim for compensation at appeal; therefore, the court made no judgement in relation to compensation owed or not owed to them. I think that is an important point.

What we want to do with this legislation is provide the greatest amount of certainty that we possibly can for Australian disability enterprises, that the circumstances of the past will be addressed, that there will be the opportunity of a payment scheme for their supported employees. That knowledge of the existence of a payment scheme will provide some comfort and a greater degree of certainty to Australian disability enterprises. We also want to provide the payment scheme to provide certainty and simplicity for supported employees who may have had their wages previously determined under the BSWAT. As has been pointed out by many colleagues, many of those who are supported and many of those who work in Australian disability enterprises would be eligible under the government's proposed payment scheme, and often those are the people who face challenges for reasons beyond their control. We want a system that is straightforward and accessible to them.

It has been pointed out by colleagues in their contributions that the government are seeking to extinguish certain legal rights of supported employees. What this legislation seeks to do is actually the opposite. It seeks to give a choice to supported employees, that they can have the option of the representative action or they can have the option of the payment scheme. This legislation gives choice. As is common with these sorts of arrangements, you opt for one approach or the other. That is a choice that is there for supported employees. They can choose a representative action or they can choose the payment scheme.

If this legislation does not pass, we will see less choice for eligible supported employees than would be the case if this legislation did pass. For me, that is perhaps the single most important point of this legislation. This legislation offers choice. People have a legal right to pursue a representative action and that is their choice. Should this legislation pass, they will have another avenue of opportunity. Which path they choose is entirely up to them. But what is clear if this legislation does not pass is that the payment scheme will not be established and there will be narrower choice. There will be less choice for supported employees. I ask colleagues to reflect on that as they consider the matter that is before us.

I want to acknowledge the constructive approach that a number of colleagues have taken in this debate, particularly Senator Moore. We may quibble on some of the amendments, but Senator Moore is very positive and constructive in relation to these matters. Senator Siewert as well approaches these matters in good spirit. I also want to acknowledge the Palmer United Party, particularly Senator Wang and Senator Lazarus, with whom I have had very productive discussions, and the Palmer United Party have crafted an amendment which the government is happy to support. That is the spirit in which debates on matters such as this should be conducted.

As has been indicated to the opposition, I have some difficulty with some of their amendments, particularly those which would allow individuals to access both the payment scheme and a representative action at the same time—to pursue their avenues under both mechanisms. The opposition will counter that, under the proposed amendments, there would be the opportunity, if someone were successful at law, having also drawn down on the payment scheme, to seek to recoup funds equivalent to those which had been drawn down from the payment scheme. I acknowledge that. But I do not think it is desirable or necessarily 'real world' to seek to recoup payments from someone who is potentially vulnerable. It is a messy process which those opposite propose. I think it is much better to have a cleaner, simpler arrangement, where individuals have the choice of a representative action or a payment scheme. Seeking to allow individuals to be part of both and net out the difference and have a recovery mechanism is fraught at a number of levels.

The other main amendment of the opposition is that which relates to nominee provisions. The government have sympathy with the opposition's approach, but that is an approach which we think can and should be given effect to through the regulations rather than through the primary legislation essentially seeking to achieve the same outcome but through a different mechanism.

I commend the legislation to colleagues. I think colleagues should reflect on the difficulties that there would be in allowing people to take part in both a representative action and the payment scheme and then seek recovery of moneys if people ended up being successful at all. I think that is fraught.

I should also point out that the government has amendments—and I will move them shortly—in relation to some minor administrative matters which are essentially a tidying-up and which I do not think will cause colleagues any concern. But I will leave it at that. We will no doubt have a committee stage, given the amendments that there are from colleagues, and I look forward to contributions at that point.

Question agreed to.

Bills read a second time.