People with Disability Australia Incorporated
Postal Address: PO Box 666 Strawberry Hills NSW 2012 Street Address: Tower 1, Level 10 1 Lawson Square Redfern NSW 2016 Phone: 02 9370 3100 ABN 98 879 981 198 Toll Free: 1800 422 015 Fax: 02 9318 1372 TTY: 02 9318 2138 Toll Free TTY: 1800 422 016 Email: pwd@pwd.org.au tis: 13 14 50 NRS: 1800 555 677 NGO in Special Consultative Status with the Economic and Social Council of the United Nations
People with Disability Australia (PWDA)
Submission to the Senate Standing Committee on Community Affairs inquiry into the Business Services Wage Assessment Tool Payment Scheme Bill 2014
Submission
July 2014
Our vision is of a socially just, accessible and inclusive community, in which the human rights, citizenship, contribution and potential of people with disability are respected and celebrated.
About Us
People with Disability Australia (PWDA) is a leading disability rights, advocacy and representative organisation of and for all people with disability. We are the only national, cross-disability organisation - we represent the interests of people with all kinds of disability. We are a non-profit, non-government organisation.
PWDA’s primary membership is made up of people with disability and organisations primarily constituted by people with disability. PWDA also has a large associate membership of other individuals and organisations committed to the disability rights movement.
We have a vision of a socially just, accessible, and inclusive community, in which the human rights, citizenship, contribution, potential and diversity of all people with disability are recognised, respected and celebrated. PWDA was founded in 1981, the International Year of Disabled Persons, to provide people with disability with a voice of our own.
1. PWDA advocates that the Business Services Wage Assessment Tool (BSWAT)
Payment Scheme Bill (the Bill) should not proceed and that it is beyond saving through amendment. The Bill is a clear attempt on behalf of the Commonwealth to avoid implementation of the Nojin and Prior judgement, and to sabotage the current representative action for compensation by people with intellectual disability who experienced discrimination as a result of having their wages assessed using the BSWAT. In doing so, the Bill will exploit the vulnerable circumstances of people with intellectual disability who work in ADEs, by providing a payment in exchange for their consent to maintain a system of wage determination which has been proven to discriminate against them.
2. There are 3 key reasons why the Bill should not proceed:
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The Bill cannot achieve the purpose of securing employment for people with disability. It is misleading and will not provide certainty.
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The payment scheme does not provide a remedy to people with disability who have been discriminated against and/or have lost wages due to the BSWAT.
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The nominee provisions fail to recognise the legal capacity of people with intellectual disability. They also significantly undermine the credibility of the person’s decision to accept a payment or opt to seek a legal remedy.
The Bill cannot achieve the purpose of securing employment for people with disability. It is misleading and will not provide certainty.
3. According to Minister Andrews second reading speech the purpose of the Bill is to ’‘help provide ongoing employment for employees with disability following a recent [the Nojin and Prior] court case’’. It aims to do this by ’’removing perceived liability“
That could impact the ability of Australian Disability Enterprises (ADEs) to deliver
ongoing employment support’’. This will be achieved by establishing a payment scheme for eligible workers whereby if a person accepts a payment then they extinguish their right to pursue a legal remedy regarding the BSWAT. The potential liability of ADES and the Commonwealth to defend or pay compensation claims arising from cases regarding the BSWAT would thus be extinguished for every person who took a payment.
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However, the stated purpose is misleading because the provisions in the Bill in itself will not ensure the continuity of employment for people with disability in ADES. In fact the future viability of ADES is unclear, and this is due to matters which are unrelated to whether people choose to take a payment from the scheme or pursue compensation.
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In an application brought by United Voice (UV) and the Health Services Union (HSU) The Fair Work Commission (FWC) has been asked to review whether the BSWAT should remain part of the modern Supported Employment Services Award (SESA)3. If this action is successful and the BSWAT is removed from the SESA then workers assessed and paid under the BSWAT will have to be reassessed using another tool provided by the SESA. This could be an existing tool or a new tool, and it may result in the payment of higher wages which ADEs would have to absorb. Logically, it may also result in the loss of jobs for people with disability if ADES cannot adapt to this new environment or the government does not support them to do so.
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Secondly, in response to the governments request for a temporary exemption to the Disabilty Discrimination Act (DDA) 1992 to continue to use the BSWAT, in April 2014 the Australian Human Rights Commission (AHRC) told the Commonwealth that it has one year to take all necessary steps to transition from the BSWAT to the Supported Wage System (SWS) or a FWC approved alternative.4 The Commonwealth is yet to share or consult on which tool it intends to adopt or the schedule for the transition. However, the SWS or another alternative may well result in the need to pay higher wages to workers with disability who had previously been assessed under the BSWat. This may lead to the same cost increase for ADES as described above.
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The overarching point is that the payment scheme may wel relieve ADES from liability for compensation if workers were to pursue this remedy through the courts. However, it will not mean that the viability of ADEs is guaranteed, or that the payment scheme would protect ADES from the costs of paying higher wages in the future. It is quite possible that workers could take a payment under the scheme and still lose their job due to the outcomes of the other processes currently unfolding.
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It is simply not truthful of the Commonwealth to promote this scheme to people with disability and their families as necessary to save their jobs, or to ADES as necessary to save their businesses. The viability of these jobs and these businesses is only partially related to ADES’ potential liability for workers compensation related to the BSWAT. The payment scheme simply does not provide the “certainty” that Minister Andrews has stated is an “immediate priority” 3 23 December 2013 see https://www.fwc.gov.au/awards-and-agreements/awards/award-modernisation/variation-applications/AM2013/30 PWDA is also a party to this action. 4 https://www.humanrights.gov.au/news/media-releases/application-exemption-disability-discrimination-act-1992-business-services-wage
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The payment scheme does not provide a remedy to people with disability who have been discriminated against and/or have lost wages due to the BSWAT.
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The payment scheme does not make an admission of liability for discrimination or lost wages to those who accept a payment under this scheme. The Bill seeks to avoid providing a remedy involving compensation, and it avoids implementing the judgments of the Federal and High Courts of Australia. It does this by making a payment in exchange for a person waiving their right to a legal remedy.
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It has already been established that the BSWAT breaches the DDA, and last year the Committee to the UN Convention on the Rights of Persons with Disabilities (CRPD) said that the Australian Government should immediately stop using the BSWAT and pay fair wages.5
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It is important to note here that the Commonwealth does not accept that the BSWAT is discriminatory towards people with intellectual disability other than Nojin and Prior6, does not accept that there are inherent problems with the fairness of the competency element of the BSWAT as found in Nojin and Prior, has not accepted liability for breaching sections 15, 24 or 29 of the DDA as found in Nojin and Prior, and has not committed to removing the discriminatory elements of the BSWAT from use by ADEs or taken steps to transition from the BSWAT to an alternative tool as instructed by the AHRC and the UN CRPD Committee.
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Until the Commonwealth commits to ending wage assessment using the BSWAT, people with disability will continue to be assessed by it, and will continue to experience wage injustice. This will include people who take a payment under the scheme; yet in doing so they will have given up their right to complain about a discriminatory system that the Commonwealth has no plans to end.
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One of the Commonwealth’s intended purposes of this Bill is to “help provide ongoing employment to employees people with disability”, yet the employment being offered is subject to conditions which the highest court in the land has determined are discriminatory. Not only is this insulting to people with disability, but rather perversely the Bill is seeking to purchase the authority of people with intellectual disability, one of the most disempowered groups in society, to effectively veto a decision of the Federal Court so that it can continue with a discriminatory practice.
The nominee provisions fail to recognise the legal capacity of people with intellectual disability. They also significantly undermine the credibility of the person’s decision to accept a payment or opt to seek a legal remedy.
5 See paragraphs 49 and 50 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=883&Lang=en 6 Ms Laura Angus, Branch Manager, BSWAT Employment Response Team, Department of Social Services at the Senate Community Affairs Committee Inquiry into Business Services Wage Assessment Tool Payment Scheme Bill 2014 and Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014, 24 July 2014, Parliament House Victoria.
14.
The Bill provides for the appointment of substitute decision makers, or nominees, by the Secretary. These nominees can undertake any act provided by the Bill if they regard an eligible person as “not capable of doing, or being supported to do, the act”7. This creates a wide discretion for nominees to act across all elements of the payment scheme. For example: seeking and weighing up information; registration; correspondence with the Department of Social Services (DSS), ADEs, financial counsellors or lawyers; communicating decisions; and making the choice to accept a payment or pursue a legal remedy.
15.
The duty of a nominee is to ascertain and give effect to the preferences of a person as they relate to the scheme8, but the Bill does not specify that persons must be supported to make their own decisions, or that the will and preference of the person must be the basis of all decisions. This is contrary to Article 12 of the UN CRPD. PWDA does not support the inclusion of nominee provisions in any Commonwealth legislation including the recent National Disability Insurance Scheme (NDIS) Act 2013.
16.
The current Inquiry by the Australian Law Reform Commission (ALRC)9 into equal recognition before the law for people with disability also raises concerns with the way in which Commonwealth laws deny legal capacity to people with disability, especially people with cognitive impairment. PWDA made a detailed submission to this Inquiry outlining the principles which should govern the provision of support for people with disability in the exercise of their legal capacity, including recommendations to amend the NDIS Act10.
17.
Moreover, the Bill does not contain safeguards against conflict of interest. The stated purpose of the payment scheme is to provide “reassurance to supported employees, and their families and carers, by removing perceived liability that could impact the ability of ADEs to deliver ongoing employment support”. Therefore, it would be a conflict for any person to be nominee where they have an interest in an employee with intellectual disability retaining their job at an ADE.
18.
ADEs themselves have a conflict of interest to act as nominees as they may be liable for paying compensation in the future if people chose to seek a legal remedy – it is to their advantage for workers to accept a payment from the scheme.
19.
For DSS it is of advantage for workers to accept a payment from the scheme as this will reduce the number of people seeking to claim compensation from the Commonwealth and the cost of any compensation itself. Therefore it is a conflict of interest for the Secretary to appoint nominees, especially as doing so removes the right of a person to make their own decisions.
Conclusion
20.
Family members and carers who act as nominees may also have a conflict of interest if they fear that a person with intellectual disability may lose their job if they do not accept a payment. The unemployment of a person with disability may be disruptive to family life, and the other disability support arrangements that a person and/or the family is used to, as well as for the person with disability themselves.
Conclusion
21.
In conclusion, the Bill asks people with intellectual disability to accept a payment for the wage injustice, discrimination and significant economic loss that they have experienced. In return, they will continue to experience the same wage injustice, discrimination, and economic loss indefinitely. They will also extinguish their right to complain or pursue a remedy for any past or future wage injustice, discrimination and economic loss. Moreover, the decision to accept a payment and these perverse terms can be made for them by another person, who may have a vested interest in the outcome, and is acting in breach of the person’s right to recognition of their legal capacity.
22.
All employees in Australia have the right to equal pay for work of equal value, this includes people with all kinds of disability. It is not acceptable for people with disability to remain unequal citizens, with unenforceable rights, and ineffective means of redress for injustices done.
23.
To date, People With Disability Australia has not been consulted by the Commonwealth on any element of the Bill, on any plans to transition away from the BSWAT as required by the Australian Human Rights Commission, or on any plans to include us in providing support to people with disability affected by the Nojin and Prior case or the BSWAT in general.
24.
The Commonwealth, DSS and ADEs should consult people with disability and their representative organisations on how best to support people with disability to understand the events that have led to the current situation and to prepare for the changes that may happen in the future. This should include the provision of independent advice and information.
25.
PWDA strongly encourages the Committee, and all of our Commonwealth law makers, to put the rights of people with disability at the very forefront of decision making regarding the future of this Bill, the future of the BSWAT and the future of ADEs.
We thank the Committee for the opportunity to contribute to this Inquiry, and we would be happy to participate in further consultation on any of the matters raised in this submission.