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

I thank Senator Lambie for her contribution. I think it is important to recap a little on the history and the creation of the BSWAT tool. The BSWAT tool was developed by a range of parties in good faith. It was developed through consultation with advocates, with unions, with a range of stakeholders. At the time the BSWAT tool was developed, it had broad support and broad confidence. This was not something that the Commonwealth created in isolation. There was strong involvement of unions, advocates and others. I think it is also important to recognise that almost no-one is suggesting that there is not a role for pro rata wage tools. The matter which is before Fair Work Australia at the moment in the development of a new wage assessment tool is what is a more appropriate pro rata wage assessment tool that enjoys broader confidence. The BSWAT is not the only wage assessment tool that has been used in disability enterprises. There will continue to be pro rata wage assessment tools in recognition of differing productivity of individuals.

I should also make clear, again, that there has been no court ruling on the BSWAT as a whole. The court ruling specifically related to the application of the BSWAT tool to two individuals—Mr Nojin and Mr Prior. Also, the High Court has made no determination in relation to these matters. The High Court did not grant leave for an appeal, so the High Court has not considered these matters. No court has made any determination, ruling or finding in relation to payment.

In relation to our payment scheme, no-one knows what wage assessment tool would have been used in the absence of the BSWAT tool. No-one knows what the counterfactual is. If the BSWAT tool had not been used for 10 years, no-one knows and no-one can say what wage assessment tool would have been used. This is why the Commonwealth has come up with a formula that will guarantee that people are paid more than they were paid—because we do not know what wage assessment tool might have been used if the BSWAT did not exist. That is why the Commonwealth has had to come up with a formula. We have come up with a formula that will ensure that people get paid more than they were paid. That is what this bill is all about—giving people more money than they have received in the past.

A number of colleagues have raised their conversations with families and advocates. It would be fair to say that through my role as the minister for disabilities I would have as many conversations with families and advocates as anyone in this place. I have spoken to plenty of families and individuals who think that the payments scheme is a good idea. I take on board what they have said to me.

In relation to the representative action, I do not know if the representative action will be successful or not. If the representative action were successful, I do not know if the court would determine that people should be paid more, less or the same as the payment scheme. No-one knows that. What we have sought to do in this environment is to come up with a formula that will pay supported employees who have previously been assessed under the BSWAT more than they were paid before. That is what this bill is all about: it is about giving more money to supported employees who were previously assessed under the BSWAT.

I also think it is important, when looking at supported employees in disability enterprises, that we do not just look at the pro rata hourly rate that the individual is paid for their work in isolation. People in disability enterprises in effect receive a package of supports. They receive the hourly rate. They receive the disability support pension. They likely receive a Commonwealth health benefits card. They also have the support of the staff in the disability enterprise. The Commonwealth, on behalf of the community, puts about $200 million into disability enterprises, essentially to help with the costs of the staff who support those supported employees. So you really have to look at the package of supports that an individual receives in the disability enterprise. What we are seeking to do is to enhance the package of supports. We are seeking to enhance the package of supports through this payment scheme, which will see individuals receive more money for their past work. We are also seeking to enhance the package of supports for individuals by creating, under the auspices of and with interested stakeholders, a new wage assessment tool. As I have indicated, it is highly likely that that will lead to higher pay, which is why we have the $173 million fund to help in the development of that wage assessment tool and also to help with the transition costs for disability enterprises.

So everything we are seeking to do as a government here is about enhancing that package of supports. We are not seeking to take anything away from supported employees. To the contrary: we are seeking to enhance their previous situation and we are seeking to enhance arrangements for them into the future. This legislation only seeks to provide more for people who have been assessed previously under the BSWAT. It does not take anything away. This seeks to provide more. We do not know what the outcome of representative action will be. But obviously people are perfectly entitled, as they should be, to pursue that option if they want to. I thought it might be helpful for colleagues to respond to some of the points that Senator Lambie raised.