NDIA Accountability Project

Addressing Exploitative Conditions and Insecure Work in the NDIS Workforce

‹ PrevPage 1 of 16 · Source p. 1Next ›

Health Services Union

Submission

Parliamentary Joint Standing Committee into the NDIS

General Issues Inquiry

June 2023

About the HSU

…………………………………………………………………………………………………………….. 3

HSU Disability Coverage

………………………………………………………………………………………………….. 3

Overview

……………………………………………………………………………………………………………………. 4

Survey

……………………………………………………………………………………………………………………….. 4

Lift Quality and Safeguards

……………………………………………………………………………………………. 4

  ### Register all providers based on service provision risk

………………………………………………………….. 5

 #### Regulate prices so that providers invest in workforce and participant outcomes

…………………… 6

  ### Register all workers with accreditation and minimum qualifications

…………………………………….. 7

#### Fund training and create career pathways

…………………………………………………………………………. 9

#### Fund bargaining above the Award

………………………………………………………………………………….. 11

Fix Award Loopholes and Exploitative Conditions

…………………………………………………………….. 12

#### Stop employers ripping off disability support workers by paying incorrect rates under the Award12

#### Regulate gig platforms

…………………………………………………………………………………………………… 13

 #### Fix the exploitative and gendered $7 an hour overnight sleepover allowance

……………………… 15

#### Address insecure work and promote workforce mobility with a portable leave scheme ........... 16

Concluding Remarks

……………………………………………………………………………………………………. 16

This submission has been authorised by: Lloyd Williams, National Secretary, Health Services Union

For questions regarding this submission, please contact: Andie Moore, National Policy and Projects Officer, Health Services Union e. andiem@hsu.net.au

                                                       2

About the HSU

The Health Services Union (HSU) is one of Australia’s fastest growing unions with over 95,000 members working in the health and community services sectors across the country.

Our members work in aged care, disability services, community health, mental health, alcohol and other drugs services, private practices and hospitals. Members are health professionals, paramedics, scientists, disability support workers, aged care workers, nurses, technicians, doctors, medical librarians, clerical and administrative staff, managers and other support staff.

HSU Disability Coverage

The HSU is the primary disability services union in Victoria and Tasmania, representing support workers at the frontline of service delivery. Furthermore, the HSU represents allied health professionals in every jurisdiction, including those engaged in providing services to National Disability Insurance Scheme (NDIS) participants.

Additionally, we represent a number of disability support workers in New South Wales (NSW), Western Australia, South Australia, Queensland and the Australian Capital Territory (ACT); however, the HSU is not the primary union for direct disability support workers in those jurisdictions.

Our broad disability membership across a range of professions gives us a unique insight into the rollout of the NDIS, how the Scheme is interfacing with other mainstream services and the market and workforce issues critical to the Scheme’s success.

Overview

The Health Services Union (HSU) welcomes the opportunity to provide a submission to the Parliamentary Joint Standing Committee into the NDIS’ 2023 General Issues Inquiry. The NDIS faces a dilemma where demand for services is increasing faster than the supply of labour. The Scheme will need to attract 83,000 workers by 2025, yet workers are leaving the sector in droves1. In this submission, the HSU urges the Federal Government to become a better steward of workforce and skills development, working conditions and sector regulation to meet this growing demand and best support NDIS participants.

The government must lift quality and safeguards by regulating prices to protect the scheme against rorts and rip-offs, regulating providers to ensure quality standards, introducing minimum qualification standards,funding training and bargaining to build a workforce that can deliver high standards of disability support that participants deserve. It also needs to fix the employment loopholes causing disability support workers to be exploited at work. That means stopping providers from paying disability support workers under the incorrect Award rates, regulating gig platforms to ensure all workers receive fair minimum rates, penalties, allowancesand leave, superannuation, access to workers’ compensation and WHS protections, fixing the exploitative and gendered $7 per hour overnight sleepover allowance in the Award, and addressing employment insecurity and promoting workforce mobility with a portable leave entitlement scheme.

Survey

Using a summary of responses and case studies from a union member survey conducted in February and March 2023, we highlight the issues and recommendations under key policy priorities. Our members’ insights stress the need to the support disability support workers and improve working conditions across the NDIS to raise the standard of support that participants receive.

The survey was open for two weeks and produced a sample size of 1,659 workers from the Disability sector. Most respondents work in Victoria (64.7%), while 23.7% of respondents come from Tasmania, 11.3% from New South Wales, and 0.2% from the ACT and Queensland—49.8% work in capital cities, 46.18% in regional towns and 4.1% in rural areas. Most respondents had permanent/ongoing work with access to paid entitlements (79.7%), and the median age range of respondents was between 55-64 years old. 63.5% of respondents identified as women, 33.2% identified as men, and 0.3% as non-binary. 14.5% speak a language other than English at home, 11.6% have lived experience of disadvantage and/or welfare service use, 5.4% have a disability, 3.6% are Aboriginal and/or Torres Strait Islander, and 2.6% are on temporary visas.

Lift Quality and Safeguards

We must lift quality and safeguarding standards to ensure higher accountability of all service providers. A well-qualified workforce in a well-regulated market with decent, safe working conditions is best equipped to support participants. However, regulatory standards are slipping. As fewer providers register with the NDIS Quality and Safeguards Commission, the government has limited oversight of the services it funds. The skills base of the NDIS workforce is imploding as training is poorly funded and qualifications are not required to work with participants. As price competition continues to put downward pressure on wages and conditions, working conditions are deteriorating.

A poorly regulated market which takes workers for granted and disregards the skills required to provide quality support also allows providers to rip off and take advantage of participants. As funder, the government must assume responsibility for the standards of support participants receive by regulating workforce and provider quality, provide funding for training to lift the quality of disability support work as well as support to get bargaining moving in the NDIS. Supporting disability support workers is fundamental to building a better NDIS.

Register all providers based on service provision risk

The government must have oversight of all the providers it funds to uphold high standards of quality and safeguarding practice and measure participant outcomes. There is a public interest in ensuring every dollar spent in the NDIS is spent effectively, but this is impossible without a provider registration scheme that applies to all providers of NDIS services, including on-demand platforms, which allows the government to “follow the money”. If the NDIS can screen workers, it must also be able to screen providers.

In unregistered providers, responsibility for managing quality and safeguards falls onto participants and workers, who are not guaranteed guidance or training to implement safeguards. The NDIS Commission only hears about malpractice or neglect in unregistered providers after receiving a complaint with limited ability to prevent abuse or neglect from occurring beyond light touch educational measures. In Q3 2022-23, at least $1.82 billion in NDIS payments were made to unregistered providers who are not subject to quality and safety audits, required to report serious incidents to the NDIS Commission or screen their workers.

Unregistered providers pose a threat to quality and safeguards. Registering only 58% of the plan-managed market limits the ability to measure the effectiveness of safeguarding practices, as any data will only reflect registered providers who consent to quality audits, even though 60% of participant complaints relate to unregistered providers. It is possible that the most malicious for-profit providers who avoid registration costs and cut corners on safety to grow their bottom line are not captured in reviews of safeguarding practices. The government is in the dark about the riskiest corner of the NDIS and must, as both funder and regulator, take a more proactive approach to regulating providers.

“National standards need to be implemented, as in childcare and aged care, with a regulated body carrying out audits and inspections. Multiple types of services are sucking the system dry and provide inadequate support.” – Disability support worker, Hobart

“It’s very difficult for organisations to pass on additional incentives [due to] excessive and ineffective compliance requirements. Although organisations are regulated, it’s frustrating to see the lack of action by the Commission against organisations that clearly do the wrong thing.” – Disability support worker, Hobart

All providers and platforms must be subject to registration with the NDIS Quality and Safeguards Commission, proportionate to risk of the services provided. Unless action is taken to mandate provider registration, a race to the bottom in quality standards will worsen. In light of evidence that financial pressures in the NDIS increase risks to participant safety which have not been captured by the “self-regulatory approach to safeguarding” we urge the registration of all providers and platforms in a risk-proportionate manner. A robust registration model must embed workforce standards into disability support. Instead of providers self- evaluating against the NDIS Practice Standards, the Commission should audit providers randomly itself as part of registration with a focus on supporting quality assurance rather than risk mitigation. Universal registration would lift participant confidence by allowing pre-emptive market regulation of all NDIS suppliers, including providers of brokerage or platform services and allow the NDIA to better measure quality of service providers.

A revised and proportionate NDIS registration scheme should incorporate (at least) the following:

 -   Reporting and acquittal of NDIS funds
  • Screening of all workers, regardless of mode of engagement, i.e. gig/independent contracting
  • Compliance with WHS and industrial obligations, ensuring workers are paid at least the wage rates applying to social and community services employees under the SCHADS Award
  • Positive obligations on employers to provide training

By making the scheme proportionate, registration requirements would be sensitive to the nature of the supports provided, the level of risk involved, and the size and scale of the provider. Rolling out registration requirements to all NDIS providers should not involve burdensome requirements, particularly in NDIS services considered very low risk (e.g. gardening or tenancy assistance). If the NDIS Commission carried out random audits, it would be able to ensure that audits are appropriately rigorous and proportionate to risk.

Regulate prices so that providers invest in workforce and participant outcomes

Prices charged on the NDIS market must be more tightly regulated by an independent price-setting body to ensure that prices directly correspond to workers’ pay and provide for adequate staffing and supervision levels, administrative duties, training and leave entitlements.

We must lift quality and safeguards by better regulating pricing. Loose price regulation allows unscrupulous providers to overcharge participants and underpay workers while leaving little room for investment in quality workforce. Although the NDIA uses the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award) as the basis for price setting, these funded award wages and conditions are often not passed onto workers. This is made worse by prices that often fail to resource the “background work” required to deliver NDIS supports (i.e. debriefing and administration tasks) and reduce expenditure on workforce10.

Reduced paid time with clients impacts workers’ ability to understand clients’ needs and pressure on providers’ costs, leading many to disregard training as unnecessary or direct workers to do it in their own time.11 Disability support and allied health workers are seeing soaring caseloads in chronically understaffed workplaces, with a survey of HSU members in the NDIS finding only 23.3% had enough staff in their service. These conditions load stress on workers, 71.4% of whom find work emotionally draining, and force them into work they are not qualified to perform, causing work to be rushed with less regard for care standards:

It’s increasingly difficult to get a result from incident reports. My co-workers and I don’t feel safe at work due to a lack of a secure working environment. If we’re attacked, we’re told that we can’t lock our office door, which is meant to be a safe space for ourselves as well as our property and resident files.“ – Disability support worker, regional Victoria

We’re currently understaffed with regular staff. Many workers have left or reduced their hours. Unfamiliar support workers can trigger behaviours of concern with some clients. We recently had another client hospitalised because of this. Upper management does not work well with long-time staff or listen to them.“ – Disability Support worker in SIL, regional NSW

Adequate supervision levels provide workers time to debrief, enabling management to improve practice and equipping them to report safety issues and ensure safe delivery of supports. However, intense cost pressures leave less than 1 in 5 workers enough time to supervise staff, and 41.6% miss out on one-on-one supervisor support to discuss clients. Less than half of our members (43.5%) say their supervisors consistently support their safety, wellbeing and development, and just a third (33.6%) receive regular coaching.

“The NDIS costing model doesn’t provide sufficient resources for supervisors to adequately support staff. Funding fails to identify the number of workers that require supervision, given that many staff work across multiple teams”

“Supervision is few and far between, that’s if it does happen. We aren’t debriefed after extreme major incidents. We’re constantly questioned about doing overtime when we’re understaffed. We haven’t had a staff meeting since 2022.” – Disability support worker, metropolitan Melbourne

Many HSU members also report performing unpaid work. Over half the members surveyed earlier this year worked without pay in the last week, and 17.3% worked more than five hours unpaid. Over a third processed paperwork or communicated with colleagues without pay, and around a quarter organised rosters, attended team meetings or travelled to work unpaid. The inadequacy of prices under the NDIS’ individualised funding model is at the root of this: almost three-quarters (72.9%) of members surveyed say that funding denies them adequate time to pursue administration duties.

“After over 40 years in the disability sector, I find the NDIS is the worst system we could be working under. I work with five clients on my own. In that time, I’m expected to clean, tend to paperwork (updating files for every client), cook, provide transport, coordinate appointments, and somewhere, just somewhere, I’m supposed to actually give quality care.” – Disability support worker, metropolitan Melbourne

“I won’t stay in this industry much longer as the funding model prevents me from being able to earn enough income.” – Disability support worker, regional Victoria

Just as companies should not be able to overcharge participants for services and assistive technology purely because they are offered under the NDIS, providers should not be able to undercharge participants to undercut competitors. Decent working conditions facilitate high standards of disability support, and prices must be tightly regulated to prevent providers from reaping excessive profits at the expense of workplace conditions and ensure sufficient funding to lift quality across the scheme. Breakdowns of what prices cover and fund should also be readily available, and prices must enable compliance with the SCHADS Award or relevant enterprise agreements (EAs), so workers are compensated for their experience and all hours worked. The NDIS Pricing Arrangements must consider compensation for travel as part of the “core” of NDIS prices instead of leaving workers to claim these expenses separately. Providers who consistently “undercharge” clients at the expense of meeting their industrial obligations should have their registration reviewed.

There should be an independent price-setting body akin to IHACPA, which ensures prices are set to encompass the full costs of providing different forms of support and powers to adjust prices when they fail to cover minimum wages and conditions. An independent price-setting body should work in tandem with a workforce committee comprising unions and other sector stakeholders, officials from DSS, the NDIA and the NDIS Quality and Safeguards Commission to work together on workforce policy matters such as market intervention strategies, market stewardship and price controls.

Register all workers with accreditation and minimum qualifications

“No one should work in the NDIS without being registered. Disability registration should become a law, not voluntary.” – Disability support worker, metropolitan Melbourne

Raising workforce standards lifts the standards of support participants receive. The only currently existing form of workforce regulation is worker screening checks which only apply to registered providers. As the unregistered provider market grows, fewer workers are passing screening checks. The government must lift safegards by ensuring that all workers pass those checks. However, it also needs to lift quality standards in the workforce. It must do so by introducing a positive worker registration scheme requiring workers to have at least a Certificate IV and meet ongoing continuing professional development (CPD) requirements.

7

The Federal Government must establish a comprehensive disability worker registration scheme

The Federal Government must establish a comprehensive disability worker registration scheme, integrating a well-funded worker screening system applying nationwide and across the care and support sectors. A mandatory worker registration scheme in disability would reflect reforms occurring in aged care to introduce a national personal care worker registration scheme and build on the work already underway in designing a mobile care sector worker screening system. Worker screening must be more efficient, supplemented by sufficient funding for worker screening units to minimise processing delays which prevent or delay prospective workers from taking up work. Almost half of the workers we surveyed (46.2%) cited clearance delays of over three weeks, 6.5% even mentioned delays of over three months. Separate screening processes across the care and support sector and different states and territories can cause the same worker to be screened multiple times12. Screening processes must be streamlined to reduce duplication, enable more workers to enter the social assistance industry and promote labour mobility between its sectors.

Screening alone only ensures workers meet the requirements of the NDIS Practice Standards and does not build a well-qualified workforce.13 Minimum qualifications must be treated as fundamental aspects of a national worker registration scheme so it can equip workers with the training and qualifications necessary to provide quality disability support so that regulation extends beyond screening processes.

“I cannot believe it’s not compulsory for disability support workers to have a qualification before starting work.” – Disability support worker, metropolitan Melbourne

“There are workers coming into my organisation with no qualifications or relevant experience working without supervision after one ‘buddy shift’. They’re working with clients with severe mental illness. These new workers have no idea about what schizophrenia even is, let alone how to support a client with a diagnosis.” – Disability support worker, regional NSW

Disability worker registration must have a mandatory minimum qualification of a Certificate IV in Disability Support and Continuing Professional Development (CPD) requirements, involving at least the following:

  • Registration of all disability workers delivering supports within the NDIS and a public register of disability workers, similar to the AHPRA’s public register of registered health professionals
  • Enforceable standards for workforce screening to confirm fitness to practice.
  • Enforceable qualifications for entry to practice depending on the tier of registration (a minimum of Certificate IV for all disability support workers (as referenced in Schedule B of the SCHADS Award)
  • Ongoing CPD requirements depending on the tier of registration.
  • Professional practice standards and guidelines.
  • Powers for the NDIS Commission to monitor, investigate and sanction workers who breach standards, including deregistration, prosecution and referrals to other bodies. Individual registered workers must be afforded rights to procedural fairness in all disciplinary proceedings.
  • Links to AQSA to accredit qualifications and the Registered Training Organisations (RTOs) delivering those qualifications, including monitoring and validation of training products

Many other community services professions ensure quality and safety by requiring prior study before working in the field. Disability support work should be no different. Full qualifications with integrity provide workers with the theoretical background to provide support that dignifies and empowers people with disabilities. 81.7% of survey respondents support a mandatory minimum qualification, and 55.7% think workers should have a Certificate IV to work in the sector:

“Many don’t do the Cert IV because the pay is little different once you have the qualification, so they don’t see the point. Many can’t afford 120 hours of unpaid work. It’d be good even if we were paid for petrol and a nominal”

Fund training and create career pathways

“We don’t receive paid training, but I think we should. Professional development happens in the corporate world. Why not for workers in the field who need it the most?” - Casual NDIS worker, metropolitan Melbourne

Lifting the standard of disability support requires substantial funding for training to build a continuously improving workforce. Participants feel safe when the workers that support them are well-versed in the risks involved in providing support work. Yet NDIS providers seldom pay workers to attend training that provides this knowledge or develop specialist knowledge to support participants.

There is significant unmet demand for further training from workers. 81.7% of our members request more training in complex behaviours, 64% want more training in psychosocial disability, and 43.9% want more training in human rights. We know that properly funding training protects client safety and wellbeing, yet 38% of workers request more seizure management training, and 34% believe code of conduct training should be more readily available. Three out of five members (59.6%) surveyed only received up to 2 days of training in the last year, and over a third (36.4%) were not compensated in full for it. Already low-paid workers frequently forfeit shifts and pay out of pocket for training. These undertrained workers are often assigned to work mismatched to their skill level, risking participant safety.

Different funding schemes exist across states and territories for skills development but are set to expire. Unless funding is sustained elsewhere, we will see an exodus of highly-skilled workers from the NDSI. The HSU sees

CASE STUDY – TRAINING, SAFETY AND SUPPORT

A sole trader in regional Victoria with experience in disability support, in home and aged care found the services she worked in understaffed and under-resourced. One resident was experiencing falls but could not get allied health services to attend despite having funding in his plan. The staff had no training or equipment to prevent falls or assist him if he fell. Turnover was high and staff had been injured while supporting him, so they would have to call an ambulance causing the resident at times to wait for hours on the floor. After falling in the bathroom one day, he was admitted to hospital where he died. The support worker said it was shocking to see after her experience in aged care where equipment and training was readily available. Frequent restructures in the organisation created delays in addressing these issues. The stress and grief the worker experienced caused them to leave and become a sole trader.

“He was on the waitlist for allied health services, and he died on the waitlist.”

Enhancing Professional Development and Employment Conditions

The NDIS must make post-qualification professional development units and refresher modules more accessible to supplement full qualifications, which support ongoing skills development and mobility across disability support roles. Better aligning skills, employment and remuneration will encourage workers to gain knowledge above and beyond client engagements. Restoring the status of disability support work as a professional career will contribute to a well-rounded NDIS more responsive to diverse client needs which is well-equipped to deliver high quality disability support work and encourage valued workers to stay in the sector.

Fund Bargaining Above the Award and Employment Security

Disability support workers are the main determinants of service quality in disability support services, and the link between quality, secure, and decently paid jobs and quality care is well documented. However, the NDIS’ pricing model holds wages, conditions, and job security in the sector back. This perpetuates the historically gendered undervaluation of work in the feminised sector, contributes to the gender pay gap, and negatively impacts workforce attraction and retention.

Because the NDIA imposes price caps predicated on the minimum rates of pay in the SCHADS Award, the SCHADS Award effectively operates as a ceiling when it comes to wages and conditions for workers in the disability sector rather than as a floor as the modern award system is intended19. Unlike other sectors in the economy, enterprise bargaining has failed in the disability sector. The reality is that most workers are employed either on the SCHADS Award or on enterprise agreements only marginally above the Award.

Price competition is forcing downward pressure on wages and conditions. Less than 1 in 4 of members surveyed this year find they are paid fairly for their work Insecurity is rife: a staggering 72.6% worry about roster changes and job security, and 52.9% find their shifts can change unexpectedly. Low pay and insecure work leave workers little capacity to provide the quality support that NDIS participants deserve. With statistics like this, it is little wonder that over a quarter of the members we surveyed are weighing up leaving the sector in the next five years, with 55% of those citing feeling undervalued as a reason to leave.

“As care workers, we’re the lower wage group on the NDIS scale of jobs. We don’t get a flow of any money from NDIS packages or extra benefits, and we’re the ones who do the important job of working close to clients: keeping them healthy, safe, cared for, clean, fed, happy, entertained, and most of all, loved. Our pay isn’t keeping up with inflation, but we still turn up to work every day while others take chunks out of clients’ packages, and we see nothing much in return.” – Disability support worker, metropolitan Melbourne

The NDIS funding regime limits the potential of bargaining to deliver better pay and conditions by budgeting only for Award wages and conditions20. As providers bid down prices for supports on the market, and in combination with price caps, employers and unions have less to bargain with21. Where there are additional benefits offered by EAs over the Award, these have been voluntarily agreed to by providers and negotiated in good faith between employees and employers, often over long periods of time and with only incremental advances to wages and conditions. Members feel this pressure on working conditions, 74.2% of whom we surveyed agree or strongly agree that poor funding has made it hard for their union to bargain for pay rises.

Although continuity of support promotes safeguarding practice, there is still no structural incentive in NDIS pricing or stability of funding to support stable work and reduce rates of casualisation. The Federal Government must assume the role of steward of workforce retention and attraction and provide the settings that deliver and sustain job security and fair pay to lift quality and safeguards. Over three-quarters of HSU members surveyed believe the government should play a more direct role in funding the NDIS and provide more NDIS funding to attract workers to the sector with higher wages and better working conditions.

The government must provide “workforce capacity funding” for registered providers who bargain with unions

to advance workforce capability, capacity, and sustainability. This funding will support providers and employees to bargain for above Award wages and conditions to build and improve skills development, practice standards and participant outcomes, and make the new supported bargaining stream a viable option for the NDIS, enable bargaining more generally, and help deliver wages and conditions that properly value and recognise workers’ skills and experience.

Registered providers who secure these conditions through bargaining could apply for targeted grants. By participating in bargaining as the primary funder of the NDIS, the government will play an active role in boosting workforce attraction and retention. This funding will also sustain critical state-based conditions around rostering and professional development, which have brought thousands of workers into the sector, but rely on state funding which is soon set to expire.

Allowing employers and workers to bargain for better conditions will provide the basis for lifting quality and safeguards. As it stands, the restrictively low and capped prices leave the sector and its workforce structurally undervalued for their skills. Workers will continue to leave the NDIS if funding and pricing mechanisms do not provide for wages and conditions above the Award.

Fix Award Loopholes and Exploitative Conditions

Stop employers ripping off disability support workers by paying incorrect rates under the Award

Although the NDIS funds disability support work based on an assumed classification of at least SCHADS Schedule B (Social and Community Services (SACS)) Level 2.3 at an hourly rate of $34.2222, the HSU frequently hears from disability support worker members who are misclassified and paid by their employers as home care workers under Schedule E of the Award. This misclassification results in poor wage outcomes for a growing proportion of the NDIS workforce, as wages for home care employees under Schedule E of the Award sit, on average, around 25% below wages for SACS employees under Schedule B of the Award.

Industrially, there has been a long-standing distinction between ‘disability services’ (or ‘SACS services’, within which disability services have historically sat in many industrial instruments) and ‘home care services’. This is reflected in the SCHADS Award, which contains the services under two distinct streams, and, as noted, in the NDIS pricing arrangements which aligns disability support work with SACS work.

The issue appears to have arisen in recent times as some providers exploit a purported lack of clarity between the definition of the home care sector and the SACS sector and the classification descriptions associated with the two streams of work to misclassify disability support workers as home care employees rather than SACS employees simply because the environment in which they perform disability support work happens to be a participant’s private home. However, the fact that a disability support worker provides support to a participant in their private home does not make them a home care worker.

When the SCHADS Award and its industrial history is properly understood, the distinction between the two sectors comes down to the nature of the work itself. Unlike SACS work in the Award, home care work does not include the wider range of tasks involved in providing support to promote independent living skills and/or support social inclusion. When taken together with the pricing arrangements, which reflect both the expectations of the NDIA regarding the nature of support work as well as industry practice, it is clear that all workers providing disability supports should be classified as SACS employees under Schedule B of the SCHADS Award. Yet the misclassification of disability support workers as home care employees appear to be a growing trend amongst providers, with the incentive being that the Schedule E home care classifications attract strikingly lower minimum rates of pay compared to the Schedule B SACS classifications.

Page 13

The consequences of this practice are obvious, ranging from poor wage outcomes for workers implications for workforce sustainability as poorly paid workers seek alternative work in better-paying sectors (which may be further exacerbated as home aged care workers classified under Schedule E of the Award receive a 15% pay increase from 30 June 2023), undermining the viability of providers paying workers correctly under Schedule B, undermining and negating the outcome of the FWC’s 2012 Equal Remuneration Order which attempted to achieve equal remuneration for the predominately female disability support workforce, and poor outcomes for NDIS participants. The price guide must clarify the industrial obligations of providers when engaging disability support workers to ensure this large component of the NDIS workforce is being properly paid when providing disability support work.

Regulate gig platforms

On-demand platforms which treat workers as ‘independent contractors’ (e.g. Mable) offer lower prices to NDIS participants by sidestepping statutory labour standards and the minimum safety net of pay and conditions in the SCHADS Award and transferring the costs and responsibility for superannuation, leave entitlements, workplace health and safety, and insurances onto workers. Workers utilising these platforms lose their competitive edge if they claim workplace entitlements by charging higher prices’. As illustrated below, the minimum rate allowed by the contractor platform Mable (less the 10% service fee) undercuts the legal minimum wage for a casual employee receiving 10.5% superannuation:

$42.56 40 $37.80
$35 $30
$25 $20
Mable Minimum $32 Minimum Wage
@ Hourly Base Rate @ Casual Loading (25%) m@ Superannuation (10.5%)

Figure 1: Comparison of total hourly remuneration for weekday, daytime support

The average weekday rate for support services advised by Mable also falls short of the minimum award wage for a Certificate IV qualified support worker. These gig platforms label workers as independent contractors to avoid employer obligations and enable a “race to the bottom” over worker entitlements and conditions”. And although participants essentially adopt the role of employer, they often have little awareness about their liabilities in that capacity and the responsibilities these platforms shift onto workers”.

On-demand platforms involved in the provision of NDIS support services must be subject to registration and workers engaged by platforms must be protected by minimum standards regardless of how they are gengaged. The HSU maintains that independent contractor model platforms in the disability sector exercise considerable control over workers they engage”, and those who declare their employees to be ‘independent contractors’ do so exploitatively. Quality “disability support work is based on long-term relationships… not

Penny Williams and others, Gendered Dimensions of Digital Platform Work (Brisbane: QUT, 2021), p. 30.

Per Capita, Contracting Care: The Rise - and Risks - of Digital Contractor Work in the NDIS (Melbourne: Per Capita, 2022), p. 40.

Donna Baines, Fiona Macdonald, and Jim Stanford, ‘Zero-Sum Social Policy: Going Gig and the Australian National Disability Insurance Scheme’, Studies in Political Economy, 101.1 (2020), 17-34.

Paula McDonald, Penny Williams, and Robyn Mayes, ‘Means of Control in the Organization of Digitally Intermediated Care Work’, Work, Employment and Society, 35.5 (2021), 872-90.

Page 14

simply a series of one-off gigs“27. All NDS workers (including those operating with an ABN) and any platform directly or indirectly receiving NDIA funds must be registered with the Commission. Platforms must be required to meet regulatory duties and pay at least Award rates and conditions and superannuation. The NDIA must have the data and regulatory capability to track funding going to ABN holders and platforms to uphold compliance standards. Without oversight of the care and support gig economy, the government is unable to monitor the use of public funds and minimise waste.

The HSU does not suggest there is no place for on-demand platforms necessarily in the NDIS. But not all platforms are made equal. More equitable service models exist that provide at least minimum wages and conditions. See, in the table below, a comparison between an on-demand platform using an employment model and an on-demand platform using an independent contractor model:

Direct Employment (Casual) - Hireup Independent Contracting - Mable
Engagement
model		 Workers engaged as independent contractors,
egotiating a rate with the support recipient.
Workers directly employed as casual employees.
Hireup’s website provides a matching service
between support recipients and support workers.		 Mable’s website provides a matching service.
NDIS Provider Registration Not a registered provider in any jurisdiction.
Individual workers may be registered.
Registered NDS provider.
Platform costs (users) Users pay a 7.95% ‘client fee’ on top of the hourly
rate negotiated with the support worker.
Users pay Hireup a set price depending on when
support is provided. Rates vary based on weekday ($385.62), Saturday, Sunday and public holiday.
Hireup charges $55.82 (2 hours+) or $64.04 (less than 2 hours) to the service recipient for weekday shifts between 6am and 8pm. Additional fee schedule for sleepover rates, calculated for 8
hours sleep + 4 hours support before or after.
Platform fees (workers) Workers pay a 10% service fee deducted from their
negotiated hourly rate.
Wage regulation As the direct employer, Hireup is bound by the minimum terms and conditions prescribed in the Social, Community, Home Care and Disability Services Industry Award 2010.
Superannuation and Insurance As the direct employer, Hireup pays its employees a 10.5% superannuation guarantee. Hireup states that it provides its employees with workers compensation and professional indemnity insurance.
On-demand platforms that directly employ workers facilitate participant choice and control without trading
off working conditions that enable quality support. But NDIS market settings disadvantage these platforms by allowing others to operate unregulated, undercutting award wages and conditions while offloading workplace obligations onto workers“28. Platforms may operate in the NDIA, but provider registration and price regulation schemes must ensure platforms comply with industrial and OHS obligations and engage contractors genuinely.

Contractor platforms benefit from low awareness around worker entitlements29. 48.5% of gig workers we surveyed are at least slightly concerned about gig work’s impact on pay and job security, and less than half of those (42.9%) who received information on their entitlements heard this from the platform they joined:

“Gig platforms are hit and miss. You are really out on your own: no limits, no boundaries if you don’t know what you’re doing.” – NDIS gig worker, metropolitan Melbourne

“I found these platforms concerning when I went to clients with psychosocial disabilities. I felt at risk on my own without any support. There’s limited vetting of clients” – Disability support worker, regional NSW

On-demand platforms must provide workers with comprehensive information on their industrial rights and entitlements upon registering to work under the platform. Workers must be informed about minimum award wages and conditions, superannuation guarantees, and platforms’ obligations regarding insurance, WHS and worker compensation schemes. Requiring this will empower workers to assess their working arrangements, identify and report sham contracting and malpractice, and reassure participants that platforms fully comply with workplace obligations.

Oversight of all providers of NDIS services will promote quality assurance and informed participant choice. Proportionate provider registration and positive worker registration genuinely uphold principles of choice and control. If we do not move to regulate independent contractor platforms in the care and support sector, we risk further degradation of quality standards across the NDIS and registered providers exiting the market. Continuing to allow unregistered platforms to operate is, quite literally, an accident waiting to happen.

Fix the exploitative and gendered $7 an hour overnight sleepover allowance

Support workers deserve to be paid for every hour they are at work. The sleepover allowance in the SCHADS Award compensates support workers for only 4.9% of the standard rate (a total of around $56) when required to stay overnight at the premises where a client they are responsible is located (including respite care), with usual overtime hourly rates only payable where a worker is required to perform active work during a shift.30

“Support workers should have higher wages. The gap between what the participant pays and the worker receives is too big. Sleepover rates are an excellent example.” – Disability support worker, regional Victoria

“By the NDIS standards, a client can require assistance from a support worker several times a night, most nights of the week, and only be funded for a sleepover. We’ve had reports pointing out the level of support required for a client’s safety ignored, months’ worth of detailed data showing the pattern of disturbances by the client, and still been told it is a sleepover shift. Both clients and staff [are] put at risk, and that risk is entirely predictable and quantifiable. Workers are expected to wear the financial, physical and emotional burden of the NDIS’s pursuit of savings.” – Residential disability support worker, regional Tasmania

The extremely low allowance assumes workers are able to get a full night’s rest at their client’s premises. However, even when workers are not actively getting up at night to assist clients, they cannot fully rest, are required to keep an ear out, and are legally responsible for the safety and care of clients. Nor does the allowance compensate workers for the disutility of being required to spend nights away from their own homes and families. The low allowance has effectively allowed providers to cover demand for 24/7 support with minimal labour costs since the NDIS was established.

Sleepover shifts create immense anxiety among workers. Workers struggle to sleep well on sleepover shifts because they are still responsible for multiple clients in a home. This fatigue causes work such as administering

29 McDonald, Williams, and Mayes. 30 Social, Community, Home Care and Disability Services Industry Award 2010, p. (s) 25.7.

15

medication to be carried out by exhausted staff, risking the health and safety of participants and workers.31 In the longer run, workers who continuously work sleepover shifts are more likely to burn out32.

The rate of the sleepover allowance reflects the historical gendered undervaluation of disability support work generally. Although countries like New Zealand have abolished sleepover allowances, instead paying minimum wages for sleepovers,33 Australia continues to provide substandard pay for sleepover allowances. Exploitative conditions such as these which continue to devalue disability support work, prevent the sector from retaining the support workforce and attracting new workers to the profession and must be addressed.

Address insecure work and promote workforce mobility with a portable leave scheme

We must address the fact that work insecurity in the disability sector causes workers to lose out on leave entitlements. NDIS workers often work for multiple providers and have their leave balances paid out or reset as plans end, causing anxiety among workers34. Disability support workers should not lose out on having an opportunity to build up personal and annual leave balances, having the ability to access parental leave entitlements, or opportunity to access long service leave because of the insecure nature of the workforce. Linking leave entitlements to individual employers also creates perverse incentives by punishing workers if they leave a provider to continue working with a client to provide established supports.

The Federal Government must establish, with the states and territories, a National Portable Leave Scheme for the NDIS, where leave entitlements are banked into worker-held accounts so that they can carry balances over between providers. Victoria35, Queensland36 and the ACT37 have already legislated Portable Long Service Leave schemes for community services industries. As Long Service Leave becomes more practically attainable, experienced workers would feel more rewarded for their contributions and inclined to stay in the sector. Portable leave entitlements would give workers more flexibility to prioritise clients, enabling more choice and control for participants. Leave portability would also have structural benefits, allowing workers to move around the NDIS gaining different skills and experience, such as from SIL to Community Support, promoting the labour mobility across the disability sector critical to building an effective workforce.

Concluding Remarks

To raise the standards of support that participants receive, the government must better support disability support workers. Defined by poor working conditions, the NDIS struggles to attract workers to the sector, let alone retain workers already there. Workforce attraction and retention issues will intensify as NDIS demand grows. The HSU concludes that improving working conditions is vital to a sustainable NDIS that enhances the lives of people with disabilities, and the Federal Government must become a better steward of sector outcomes. HSU members feel undervalued, underpaid, overworked and ill-equipped to provide the dignified support that people with disabilities deserve. In a scattered, disaggregated, and inconsistent market, improving the disability support sector requires Government direction - it must lift quality and safeguards by driving funding for fair pay, secure work, safe staffing, and skills development, and regulate the quality of providers and workforce through risk-proportionate registration schemes. Restoring standards to the NDIS cannot be achieved without fixing the loopholes in employment. None of the workforce issues we articulate can be addressed in isolation or at the surface level. Holistic reform is critical: only government stewardship can deliver meaningful change that supports workers to deliver a participant-centred NDIS.

31 Natasha Cortis and Georgia Van Toorn, Working in New Disability Markets: A Survey of Australia’s Disability Workforce (Social Policy Research Centre, Sydney, 2020), p. 32. 32 Jillian Dorrian, Crystal Grant, and Siobhan Banks, ‘An Industry Case Study of “Stand-up” and “Sleepover” Night Shifts in Disability Support: Residential Support Worker Perspectives’, Applied Ergonomics, 58 (2017), 110–18. 33 Sleepover Wages (Settlement) Act 2011. 34 Edward Cavanough, Flexible but Fair: The Case for Extending Portable Leave Entitlements to the NDIS Workforce (Sydney: McKell Institute, 2023). 35 Australian Capital Territory, Long Service Leave (Portable Schemes) Act 2009, A2009-25. 36 State of Queensland, Community Services Industry (Portable Long Service Leave) Act 2020. 37 State of Victoria, Long Service Benefits Portability Act 2018.

                                                       16