Speaking on the business services wage assessment tool amendment bill

When this Business Services Wage Assessment Tool Payment Scheme Amendment Bill 2016 came before the parliament I was keen to speak on it. 


I was keen to scrutinise the legislation and I can say that I stand here to support it.

Before entering this place I worked in the disability sector for many years, with people with disabilities—both physical disabilities and children with intellectual disabilities, so I have some affinity with the subject matter. I also worked as an industrial and employment lawyer, so the issues that are being grappled with in this legislation and the course of events which led to it are well known to me.

It concerns, of course, the employment of people with a disability and it grapples with the issue of how we pay them a fair and decent wage. The Business Services Wage Assessment Tool was a tool used to determine the pro rata wages of supported employees. In essence, the benchmark is the award wage and the tool was used to assess the capacity of that worker, effectively discounting the full-time award wage against the assessment tool.

Of course, the matter was subject to litigation in the Federal Court and eventually found itself before the full court of the Federal Court. In December 2012 the full court of the Federal Court found that the tool was discriminatory. His honour, Justice Buchanan found:

The basic defect in the use of BSWAT is that it reduces wages to which intellectually disabled workers would otherwise be entitled by reference to considerations which do not bear upon the work that they actually do.

That was in the case of Nojin and Prior in the Commonwealth. The Commonwealth, the respondent in that matter, appealed and in May 2013 was refused special leave by the High. Court. In reaching her conclusion, Justice Crennan said:

The Full Court of the Federal Court, by a majority, concluded that the use of the BSWAT disadvantaged intellectually disabled persons. Although it was widely used, it was not reasonable. … The unchallenged expert evidence was that the BSWAT produced a differential effect for intellectually disabled persons and reduced their score. We see no reason to doubt the conclusions of the Full Court.

Well, that is the case and those are the circumstances which led to this matter being brought before the parliament today.

Of course, it is not for the first time, because in 2014 the government passed legislation which put in place a payment scheme for those who were affected by the legislation. People with a disability would be entitled to a payment from a fund administered by the Commonwealth. Unfortunately, the payments would have been limited to 50 per cent of the amount the worker would have been paid had the productivity element been used—that is, what should have been done.

Labor opposed the legislation for a number of reasons. Firstly, on its face, we believe that the 50 per cent payment in compensation was insufficient. We reached this conclusion after having received representations from many of the clients, advocate groups and litigants who were then in negotiations with the Commonwealth. There is also a second principle involved in matters such as this, and it is this: the Commonwealth parliament should be very slow indeed to pass legislation which effectively distinguishes the rights of parties who are engaged in a litigation, particularly when they are negotiating between themselves for the settlement of that litigation. When the Commonwealth does that it effectively inserts itself in between those parties and comes down on one side or the other of them, distinguishing and affecting rights. Of course, when one of those parties to that dispute is the Commonwealth itself you have to reach the conclusion that it is an improper use of the power of the state.

We take a different view of the legislation that is before the House today. The bill gives effect to a settlement that was reached in December last year. The parties have agreed to a deal that provides a better deal for the supported wage employees. They will receive compensation worth 70 per cent of the alleged loss under the Commonwealth payment scheme. This is an increase of 20 per cent of what they would have received under the 2014 bill. People who have already received a payment under the scheme will automatically receive a top-up payment to reflect the increased payments available under the settlement. They will not have to make any further applications to receive this payment.

Labor has always supported the establishment of a payment scheme for supported employees involved in this matter. We believe that it is essential to the resolution of the case. I have received many representations from Australian disability employment enterprises within my electorate. In fact, before coming down to speak this afternoon I spoke to Mr Ross Johnson of Flagstaff Group and discussed with him his views of the legislation and the litigation which led to it. He is keen to see the matter resolved and he is keen to see the legislation passed before the parliament, but he makes the point that it only deals with the current stock of litigants and those who may wish to join the class. It does not go to the issue of the discriminatory tool that led to the litigation in the first place. That is the unresolved matter, and it is my view and the view of the disability employment enterprises that I have spoken to that this matter needs to be resolved posthaste.

I am aware that the matter is being dealt with at an award level and has been referred to Deputy President Anna Booth in Fair Work Australia and that a conciliation process is underway. I argue that that is the best way to deal with this matter. With complex issues a final settlement is one that is best reached as the result of consent between all of the parties. That way we can be assured that the tool that is used into the future not only has no evidence of any of the discriminatory matters which have so afflicted this tool but also has the full support and understanding of the parties who are required to use it.

I have been in receipt of a number of piece of correspondence and other material as this matter has progressed before the parliament. In some of that material there has been an in my view unfortunate suggestion that there is no place for Australian disability enterprises in modern Australia. I think this is, frankly, an unsophisticated approach to the matter.

I support the maximisation of people with disabilities working in open employment in the community alongside you, I or anybody else who is working in any workplace around the country. I think that should be the goal of every member in this place. But I am familiar with the work of a number of the ADEs in my electorate. I single out The Flagstaff Group and Greenacres Employment Solutions. I spent a fair bit of time with them over the years. I know the people who work there. I know the supervisors. I know the management committee. I understand that it is unrealistic to think that many—not all—of the people who are working in these enterprises would be working in open employment if that were to be the only employment.

It is not just because of the capacities of these people, but we have to be realistic. When the unemployment rate in the electorate that I represent is often two per cent and sometimes three per cent above the national average—and even higher; sometimes three and four times the national average for people who do not have higher qualifications—we have to be cognisant of this and understand that ADEs play a critical role not only in providing employment but also in providing a social space for people with disabilities and respite for their families.

This is not meaningless work. This is not digging holes and filling them back in. Flagstaff employment, an ADE in Unanderra in my electorate, has a range of businesses from laundry services to coffee roasting to packaging. They run a printing business. They run the staff cafe out at BlueScope steelworks just down the road. They run a paper and cardboard recycling business as well. I have moved among the workers who work in these workplaces. They are doing a great job. It is meaningful employment, and they savour every day that they get to go to work and engage in it. I will make the same comments about the other ADEs in my electorate.

It behoves us to support this legislation but also to encourage those parties who are currently in conciliation before Fair Work Australia. Anna Booth, whom I know to be a very skilled conciliator of long standing and great respect amongst all the parties, will do all things necessary to ensure that a new tool is put in place so that we are not faced with dealing with similar legislation such as this in a future parliament.