Sue Lines (President) Share this | Hansard source

The question now is that this bill be now read a second time.

Question agreed to.

Bill read a second time.

I will now deal with the Committee of the Whole amendments circulated by Australia's Voice. The question is that the amendments on sheet 3725 be agreed to.

Australia's Voice 's circulated amendments—

(1) Clause 3, page 2 (line 23), at the end of the clause, add:

; and (e) to promote equitable access to government services for people who do not speak English or who have limited English language proficiency; and

(f) to ensure that translating and interpreting services contribute to improved health, legal and social outcomes for culturally and linguistically diverse communities; and

(g) to support a sustainable and professional translating and interpreting workforce; and

(h) to address systemic barriers to language access that may result in discrimination or inequitable access to services.

(2) Page 6 (after line 5), after Part 2, insert:

Part 2A — Commonwealth-funded translating and interpreting services

Division 1 — Engagement of translators and interpreters

10A Presumption of employment relationship

(1) A translator or interpreter engaged by any of the following (an engaging entity):

(a) the Translating and Interpreting Service (TIS National);

(b) the Commonwealth;

(c) an agency, authority, body, organisation or officer holder of the Commonwealth;

(d) a contractor providing translating and interpreting services to the Commonwealth;

is presumed to be an employee of the engaging entity unless the engaging entity establishes that the person is operating as an independent contractor.

(2) For the purposes of subsection (1), in determining whether a translator or interpreter is an employee or independent contractor, regard must be had to the totality of the relationship between the translator or interpreter and the engaging entity, including but not limited to the following considerations:

(a) who determines the rate of pay;

(b) who allocates work;

(c) whether the person may sub-contract work;

(d) whether the person provides services to multiple clients;

(e) whether the person is subject to performance management or compliance requirements;

(f) the level of control exercised over how, when and where work is performed.

(3) A person is not an independent contractor merely because a contract with the engaging entity describes the person as a contractor or supplier.

10B Consistency for translators and interpreters across Commonwealth translating and interpreting services

(1) If translators or interpreters are engaged under substantially similar arrangements by:

(a) the Translating and Interpreting Service (TIS National); and

(b) Services Australia;

those translators or interpreters must be treated consistently in relation to employment status, pay and conditions.

(2) The Commonwealth must not establish or maintain arrangements under which translators or interpreters performing substantially similar work for different agencies, authorities, bodies, organisations or officer holders of the Commonwealth are treated differently in relation to employment status or entitlements without reasonable justification.

10C Compliance with employment laws

(1) The Commonwealth must ensure that arrangements for engaging translators and interpreters do not contravene the following:

(a) the Fair Work Act 2009;

(b) the Superannuation Guarantee (Administration) Act 1992;

(c) the Work Health and Safety Act 2011;

(d) taxation laws relating to employee and independent contractor income.

(2) If the Commonwealth becomes aware that translators or interpreters have been incorrectly classified as independent contractors, the Commonwealth must take reasonable steps to:

(a) correct the classification;

(b) rectify any underpayment or unpaid entitlements;

(c) ensure future compliance.

10D Review of independent contractor engagement arrangements

(1) The Minister must cause an independent review of independent contractor engagement arrangements for translators and interpreters engaged by agencies, authorities, bodies, organisations or officer holders of the Commonwealth to be conducted.

(2) The review must commence within 6 months after the commencement of this Division.

(3) Without limiting subsection (1), the review must consider:

(a) whether the arrangements are legally compliant;

(b) whether the arrangements are consistent with APS Employment Principles (within the meaning of the Public Service Act 1999);

(c) whether independent contractors are being denied employment protections available to other public sector employees;

(d) whether procurement arrangements are contributing to insecure work.

(4) The persons who undertake the review must give the Minister a written report of the review within 12 months after the commencement of this Division.

(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

10E Correction of non-compliant arrangements

If a review conducted under this Division finds that engagement arrangements for independent contractors are not legally compliant, the Commonwealth must take reasonable steps to:

(a) correct the engagement arrangements;

(b) ensure independent contractors receive any unpaid entitlements;

(c) implement compliant engagement arrangements for future work.

10F Minimum engagement standards

(1) The Minister must, by legislative instrument or through procurement arrangements, prescribe minimum engagement standards for translators and interpreters performing Commonwealth-funded translating and interpreting services.

(2) For the purposes of subsection (1), minimum engagement standards must include provision for the following:

(a) superannuation contributions;

(b) minimum rates of pay and minimum engagement payments;

(c) cancellation fees;

(d) travel time and waiting time payments where applicable;

(e) work health and safety protections;

(f) access to dispute resolution processes;

(g) professional development provisions;

(h) protection from adverse action or termination without reasonable grounds.

(3) These standards apply regardless of whether the translator or interpreter is engaged as an employee, independent contractor or supplier.

10G Consultation on minimum engagement standards

In prescribing minimum engagement standards under section 10F, the Minister must consult with the following:

(a) employee organisations and worker representatives in the translating and interpreting sector;

(b) organisations representing translators and interpreters;

(c) organisations representing language service providers;

(d) any other persons or bodies the Minister considers appropriate.

10H Application of this Division

This Division applies to the following:

(a) the Translating and Interpreting Service (TIS National);

(b) Services Australia;

(c) an agency, authority, body, organisation or officer holder of the Commonwealth engaging translators or interpreters;

(d) any person or entity contracted by the Commonwealth to provide translating and interpreting services.

Division 2 — Indexation and procurement

10J Annual indexation of rates

(1) Rates paid to translators and interpreters for Commonwealth-funded translating and interpreting services must be reviewed annually.

(2) Rates must be increased at least in-line with the Consumer Price Index.

(3) Commonwealth procurement contracts for translating and interpreting services must include indexation provisions.

(4) Contractors providing Commonwealth-funded translating and interpreting services must pass indexation-increases through to translators and interpreters.

10K Procurement requirements for translating and interpreting services

(1) The Commonwealth must not award a translating and interpreting services contract solely on the basis of lowest cost.

(2) In awarding translating and interpreting services contracts, the Commonwealth must also consider the following:

(a) pay rates and conditions;

(b) workforce sustainability;

(c) qualifications and credential requirements;

(d) training and professional standards;

(e) workforce diversity and language availability;

(f) service quality and safety.

Division 3 — Essential language services

10L Essential language services

(1) Translating and interpreting services used in the following settings are essential language services:

(a) healthcare services;

(b) courts and tribunals;

(c) police and emergency services;

(d) immigration and asylum processes;

(e) social security and government services;

(f) child protection and family services.

(2) The Commonwealth must ensure that essential language services are supported by the following:

(a) adequate and ongoing funding;

(b) workforce planning and workforce development strategies;

(c) minimum service standards;

(d) emergency and after-hours availability arrangements;

(e) procurement arrangements that support workforce sustainability.

Division 4 — National Language Access Framework

10M National Language Access Framework

(1) The Minister must establish a National Language Access Framework for Commonwealth services.

(2) The Framework must include the following:

(a) minimum standards for provision of translators and interpreters in healthcare, legal and government services;

(b) standards for use of credentialled translators and interpreters;

(c) standards for data collection on language needs;

(d) workforce planning translating and interpreting services;

(e) measures to improve access to translators and interpreters in regional areas;

(f) measures to address inequities in translating and interpreting service provision.

(3) In developing the Framework, the Minister must consult the following:

(a) employee organisations and worker representatives in the translating and interpreting sector;

(b) organisations representing translators and interpreters;

(c) organisations representing translating and interpreting service providers;

(d) agencies, authorities, bodies, organisations or officer holders of the Commonwealth that use translating and interpreting services;

(e) health, legal and community service organisations;

(f) any other persons or bodies the Minister considers appropriate.

10N Review of translating and interpreting service access and outcomes

(1) The Minister must cause an independent review to be conducted into:

(a) access to translating and interpreting services in healthcare, legal and government services;

(b) the impact of language barriers on health outcomes, legal outcomes and access to government services;

(c) whether gaps in translating and interpreting services are contributing to adverse outcomes or increased costs to government services.

(2) The review must commence within 6 months after the commencement of this Division.

(3) The persons who undertake the review must give the Minister a written report of the review within 12 months after the commencement of this Division.

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

(5) If the report prepared under this Division sets out one or more recommendations to the Commonwealth Government, the Minister must, as soon as practicable after receiving the report, cause to be prepared a statement setting out the Commonwealth Government's response to each of the recommendations.

(6) The Minister must cause the statement prepared in accordance with subsection (5) to be tabled in each House of the Parliament within 6 months after receiving the report to which the statement relates.

Division 5 — Credential requirements

10P Credential requirements

(1) A person engaged to provide translating or interpreting services funded by the Commonwealth must hold:

(a) a National Accreditation Authority for Translators and Interpreters certification; or

(b) a qualification prescribed by regulation.

(2) Subsection (1) does not apply in emergency or exceptional circumstances.

(3) Where an uncredentialled translator or interpreter is engaged, the person or entity who engaged the translator or interpreter must record the reason and report annually to the Minister.

(4) Where there are languages for which credential pathways do not exist, the Commonwealth must take reasonable steps to support development of credential pathways.

Division 6 — Language Services Workforce Code

10Q Language Services Workforce Code

(1) The Minister must establish a Language Services Workforce Code to be incorporated into Commonwealth procurement arrangements.

(2) The Code must include standards relating to the following:

(a) minimum pay rates;

(b) engagement conditions;

(c) cancellation fees;

(d) qualification and credential requirements;

(e) professional standards;

(f) training and professional development;

(g) work health and safety;

(h) ethical standards.

(3) In developing the Code, the Minister must consult with the following:

(a) employee organisations and worker representatives in the translating and interpreting sector;

(b) organisations representing translators and interpreters;

(c) organisations representing language service providers;

(d) Commonwealth agencies that use language services;

(e) any other persons or bodies the Minister considers appropriate.

(4) Compliance with the Code must be a condition of:

(a) all Commonwealth language services procurement contracts; and

(b) all Commonwealth language services provider agencies.