Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

I seek leave to table that.

Leave granted.

I table that.

The CHAIRMAN: The question before the chair is that amendments (1) to (6) on sheet EH170 be agreed to.

Thank you, Minister, for that overview of what has gone before this time. It is very clear that there is an acknowledgement that people working in the enterprises were working in a discriminatory workplace. That has been determined. We had the ruling from the Federal Court. I will be asking questions, Minister, about where the development of the new tool is at. When we debated this bill last time, I asked where the development of the new tool was at, and I was told that it was in train. So I am hoping that it is kind of in train now.

When the Senate community affairs committee looked at this bill originally, there was a great deal of concern raised by people who came to see us. That concern was not just about the fact that people were not being paid—as was said to many of us—a fair day's pay for a fair day's work. It was about the confusion amongst not just the ADEs or the employees but also their families about exactly what the situation with their employment was. As we know—and we have heard this consistently—there is a deep personal relationship between many of these employees and their employment. They value their employment immensely. It is their link, it is their social engagement, and it is also their feeling of worth in their community.

Once the decision was made by the court that the BSWAT tool, as it was then placed, was discriminatory, there was a need then for people to go back and consider exactly what should be the form of employment wages for people working in these ADEs. At that time, we said consistently that it was so important for people to get together to talk about this to really identify what the needs are, to identify the viability of the process and to ensure that people were effectively linked to their employment.

The amendments that we have before us only change a couple of things. They change the dates, because, of course, as this legislation was first tabled last year, there is a need to change the actual implementation date. The first range of government amendments are just doing that, so of course there is no problem with that. The other bunch of government amendments bring forward a couple of issues. One issue is around informed decision making. I had a particular question about that, Minister, in terms of the words in the government amendment and in terms of the placement of the government amendments. In the government amendment, the principles for nominees are spelled out there. As you know, in our inquiry we looked at that in a detailed fashion. In the opposition amendments, we also have very similar wording looking at the same outcome, which is ensuring that we have a consistency of supported decision making across this area. We have them in our amendments under 4A, 'General principles guiding actions under this act,' and we would like to get some information from the minister and the department to compare and contrast them.

The major opposition amendments are picking up the issue, which the minister talked about in his contribution, about the element of choice in this legislation for the people who are involved. It is important that there is informed choice. I have a number of questions—as I had last time—about the access that people will have to the support that they need to make informed choices. More particularly, this is not an open choice. What we are saying in this employment is that we know there has been discrimination in the workplace; that people need to be, in some senses, compensated because they have not been paid fairly. So the department and the minister have, quite rightly, come up with a new way of looking at the way that people are being employed and some kind of payment with a back payment that acknowledges that. We really support that, because people know that they have not been treated fairly, so the government payment is to ensure that people have that security. The minister has portrayed that this is an open choice by people: if this bill passes, they can actually get the government payment. But that would exclude them from any benefit out of the legal processes to look fairly at whether they have been discriminated against and whether they should have a higher wage rate.

That legal action is in train. We know that it will take a long time. Legal action of this type takes a long time. We had evidence at our inquiry that they had no idea when this particular action would be concluded. We also know that the people who were involved, the families, were interested in being part of that. They went through that process and have seen the success of that legal action, taken by a gentleman almost two years ago. So there is interest in that.

This bill says, 'We acknowledge that, but you as individuals, who, in some cases are the most vulnerable employees in any source of employment in this country—people with intellectual disability—will now have the responsibility, with the support of financial advisers and lawyers, to make the decision: either take the money the government has offered you or take personal legal action. You can't do both.'

We are saying that is a restriction, Minister, and that you should not limit that option and that choice for these workers. We are also saying in the amendments, which will be before you today and which are different to the ones we brought forward last year, that we do not need the complexity of having a repayment process, as we had in our previous amendments. We have advice that if people do take up the legal process, as well as maintain their work in the enterprise, when any decision is made then payment that they have received under the departmental process would be taken into account along with payments they have received through the legal process.

So it is not a process of them getting a double benefit. It is actually a process that allows workers to have the freedom, the full options, the full potential and the rights that they as workers should have—workers who have already been determined by the system to have not had an equitable employment process. There is no doubt about that. In the evidence at our inquiry, from the department and also from different people, it was clear that there was an acknowledgement that the BSWAT model was discriminating against people in the workplace. We know that you cannot make a general process and say that everybody is being treated the same way. But we know that the court determined that this particular model was discriminatory, so people had missed out on their rights. The minister actually talked about the past and about where that fact had been determined it was acknowledged that there needed to be a change. He talked about the present and about the process whereby people would be able to receive support for legal and financial advice. But what he did not talk about was the future and the way that we think the system should operate.

Labor believe these workers should have absolute freedom of choice. They should be able to understand their circumstances, what they are now being paid and for what. They should be able to understand the changes that would be available in the process with the modelling that the departmental process will bring in. They also need to understand how that works and how they will be individually impacted. Then central to that must be the acknowledgement that, if there is going to be a class legal action for this body of workers, people should not be excluded from that. That means that they do not have the full choice that they deserve. That is what our amendments would lead to.

One thing that is most concerning in this whole discussion—and we have had visitations from so many groups and so many families—is that the families are worried and scared about the wellbeing of their family members. They have been upset by the actual processes that have gone on. They are worried about the future for these employees and about the need for them to fully understand the legal and financial situation.

Our amendments, which we will be moving, are not, in many ways, in complete contradiction to what the minister has said. But the core difference between what we believe should happen and what the minister is putting forward is that Labor do not believe that the choice offered by the department and by the minister is a full choice. We believe that we are limiting the choice for those employees. They have the right to have their options fully tested and the right to determine whether they are getting the right payment for the work they do. And by cutting off that legal option they may never know. They will just accept what the department gives them and continue with the status quo: they are told what their wages should be and they accept it. That is not good enough.

It is not just me saying that that is not good enough; that is what the Federal Court said. It said that the BSWAT model did not allow that process. So with respect to the government amendments that are before us, the changing of the date, on the first page, I would imagine that is just a case of making the system operate. There is no problem with that. We just have a difference around the decision-making process and also the options of legal process.

The CHAIRMAN: Thank you, Senator Moore. Earlier I incorrectly described a document you were seeking to table as an explanatory memorandum. Of course, it is not. As you well know, it is a statement of reasons and there is a specific process that I will deal with when we get to your amendments.