United Voice Submission

Senate Community Affairs Legislation Committee

National Disability Insurance Scheme Amendment (Quality and Safegards Commission and Other Measures) Bill 2017

August 2017

Authorised by Jo-anne Schofield, National Secretary United Voice 303 Cleveland St Redfern NSW 2016

For questions regarding this response please contact: Melissa Coad

Contents

About United Voice………………………………………………………………………………………….

Introduction…………………………………………………………………………………………………….

General comments on the Safeguarding framework……………………………………….

Code of Conduct…………………………………………………………………………………………..

####### Practice Standards………………………………………………………………………………………….

######## Provider registration…………………………………………………………………………………….

####### Worker Screening……………………………………………………………………………………………

NDIS Pricing…………………………………………………………………………………………………….

Conclusion……………………………………………………………………………………………………….

About United Voice

United Voice is a union of workers organising to win better jobs, stronger communities, a fairer society and a sustainable future. Members work in a diverse range of industries including disability support, aged care, early childhood education and care, education, cleaning, hospitality, healthcare, security, emergency services and manufacturing.

Whilst coverage and titles may differ on a state basis, nationally United Voice has thousands of members who work in the disability sector. As the people working in the disability sector on a daily basis, our members are uniquely positioned to contribute to the development of an effective NDIS safeguarding framework. United Voice members appreciate the opportunity to have their opinions, concerns and experiences considered as part of this inquiry.

Introduction

United Voice members welcome the opportunity to provide a submission to this inquiry. United Voice members working in disability support are the people who every day provide support to people with a disability. They are at the coal face of the impact of the NDIS and are uniquely placed to understand the impacts on their work and on the quality of support provided.

United Voice members are deeply concerned about the lack of a consistent and robust safeguarding system for people with disability who access services under the NDIS. Our members support a national framework of safeguards that advance the rights of people with disability and appropriately balance the risk of harm with choice and control.

United Voice members understand the vital role the disability sector paid workforce has in safeguarding people with disability. Quality support that respects and advances the rights of people with disability to live free from harm and exercise choice and control in their own lives requires a stable, professionally trained, qualified and dedicated workforce.

Due to the massive workforce growth projected under the NDIS, it is essential that systemic workforce issues, particularly attraction and retention issues are adequately addressed to ensure the provision of quality support services remains sustainable into the future.

United Voice acknowledges that workforce issues are beyond the scope of this inquiry. However, it is vital to understand that workforce issues are inextricably linked to the quality and safety of support services. Regardless of how robust a quality and safeguarding framework is, the sector will be continually constrained by these workforce issues if they are not appropriately addressed.

General comments on a safeguarding framework

People with a disability deserve the highest quality support services that are provided in a manner that is safe, accountable, respectful and responsive to an individuals needs and goals.

United Voice fully supports the introduction of a nationally consistent quality and safeguarding Commission and framework for the NDIS. This will ensure high quality service provision and preserve choice and control while minimising risk of harm for participants. All NDIS participants across Australia must have the same access to quality service. The creation of a national Commission, complaints and regulatory framework is in our opinion a positive step in ensuring quality and safeguarding arrangements for all NDIS participants.

United Voice is however concerned that the current Bill does not necessarily provide the consistency and quality needed. A substantial amount of detail is left out of the Bill, to Ministerial discretion and rules and other regulation. This leaves much of the vital detail unknown, potentially unavailable to public consultation and scrutiny and would not necessarily require the consensus of the States and territories which could serve to undermine a national approach. This lack of legislative detail makes providing a detailed submission to this inquiry on its intended outcomes somewhat difficult.

Recent inquiries into the abuse and neglect of people with disability have highlighted the need for a robust national system of provider and worker regulation by a national independent body. It is our opinion that it cannot be determined if the Bill in its current form meets these various recommendations and provides the strongest possible protection for NDIS participants. United Voice believes that given the important role of the NDIS Safeguarding Commission and Framework that the detail should not be left to discretion, it should be enshrined in legislation.

NDIS Code of conduct

The Bill provides for the creation of a Code of Conduct but remains silent on the content of the Code. In response to release of the draft Code by the Department of Social Services United Voice made a submission which outlined a number of our concerns with the draft and provided a series of recommendations. 1

An effective code of conduct for the disability sector is one that will safeguard the provision of quality disability services by ensuring professional workforce standards and upholding the rights of people with disability. United Voice believes the Draft Code fails to do this.

By simply requiring providers and workers to meet existing obligations around quality, the Draft Code does not address concerns with the current standards for quality. Nor does it address serious workforce issues which put quality service delivery at risk and ultimately threatens the sustainability of the NDIS. Furthermore the current draft code in not separately addressing requirements for workers, organisations and volunteers has the capacity to be unclear and lead to inadvertent breaches of the code.

Practise Standards

1 United Voice submission available at - https://engage.dss.gov.au/ndis-code-of-conduct-consultation/ndis- code-of-conduct-received-submissions/

Provider registration

Again the Bill leaves the detail of provider registration to discretion, apart from stating there would be differentiation between the level of risk based on supports provided. United Voice recommends that all NDIA providers must be registered.

A national registration system will ensure that all NDIS providers have met requirements of the registration system and all participants of NDIS can be satisfied that regardless of which provider they chose to access they will deliver a quality service.

A registration system must require providers to meet basic legal requirements, to adhere to an NDIS code of conduct, to establish the existence of an internal complaints process and to be subject to a quality assurance assessment.

The quality assurance system should focus on continuous improvement. The assessment should be undertaken by specially trained independent auditors and the quality reports should be made public. Making the reports public improves accountability of service providers and improves access for participants to transparent information. The quality assurance process should be reviewed every three years to ensure services maintain and/or improve across the assessment measures over time. An aspect of the assessment should include unannounced visits by the auditors.

Worker screening

The Bill provides no detail on what this most vital safeguard is to look like. Of concern is that it provides for a nationally consistent approach rather than a single national process, giving responsibility to States and Territories to enact the screening process. United Voice strongly supports the creation of a single national worker screening process, undertaken by a third party with a tiered risk based approach.

As mentioned above United Voice has provided a number of submissions outlining our preferred model of worker screening and regulation3. A summary of our preferred model is provided below.

United Voice supports a national pre-employment screening process

United Voice supports a national pre-employment screening process for all people working for an NDIS registered provider. The process should be more robust than police or criminal background checks alone. Criminal background checks are a valuable tool for employers during recruitment and clearly reduce the risk of employing those who pose an unreasonable risk to people with disability. The research shows a clear connection between a person’s criminal history and their future behaviour4.

Importantly however, police checks are limited in their usefulness as they only identify people who have a criminal record at a specific point in time and will not capture criminal activity once a person is actively employed. Further, they will not reveal instances of alleged abuse, which did not result in criminal charges.

The inequities that prevent people with disability from reporting crimes and having them successfully prosecuted further reduces the effectiveness of a system which mandates police checks only. A 2009 study reported that 40 per cent of crimes against people with mild or moderate intellectual disability and 70 per cent of crimes against people with severe intellectual disability went unreported to police5. In the absence of improved access to justice safeguards, it is important to also consider non-conviction criminal information and non-criminal information (such as workplace records) to ensure a comprehensive screening process occurs.

There is a real risk that inclusion of non-criminal information, particularly workplace records, would lead to poor quality or biased information being considered. To mitigate this risk, the source, relevance, and reliability of this information must be taken into account and the information should be excluded unless satisfied on reasonable grounds that the information is accurate.

A successful pre-employment screening process must carefully balance the rights of people with disability to be free from violence, abuse and neglect against the rights of workers such as right to privacy and natural justice. Features of a system that are respectful of these rights include;

• The assessment is conducted by an independent body with the employer only provided with the outcome and not the grounds on which the decision was made.
• The assessment is limited to relevant and credible information.
• Penalties are in place to deter vexatious/frivolous referrals against a worker.
• The assessment must have regard to the inherent requirements of working with people with disability.
• Applicants who receive a negative assessment must be entitled to an internal review processes and external appeal.

A national pre employment screening process should have the following features;

• The pre employment screening process is conducted by an independent body

4 ‘Ensuring a Qualified Long-Term Care Workforce: From Pre-Employment Screens to on-the-job monitoring’ US Department of Health and Human Services Assistant Secretary for Planning and Evaluation Office of Disability, Aging and Long-Term Care Policy, May 2006 5 Phillip French, Julie Dardel and Sonia-Price-Kelly, Rights Denied: Towards a National Policy Agenda about Abuse, Neglect and Exploitation of Persons with Cognitive Impairment, People with Disability Australia, 2009

• The process results in a clearance that is held by and therefore can move with the worker - The process should include training for all applicants of pre employment screening addressing the rights of people with a disability, how to identify risk and indicators of abuse and how to handle these issues - Once a person has met the pre employment screening requirements they are listed on a national registry of NDS workers - Pre employment screening should be repeated every 3 years and at the point of update training on the rights of people with a disability as described above should be repeated - if an employee receives a banned conviction during the 3 year registration period, or whilst still employed in the sector, the onus is on the individual as well as the authorities to update the status of their registration.

This pre employment process could ultimately lead to a national registration system for disability workers, which would enhance the public perception of the industry as providing a professional career choice.

United Voice is absolutely opposed to the creation of a “barred persons” list. This only identifies people who have already committed an act of abuse or neglect, is open to vexatious action against workers and does not provide protection to people with a disability as, as mentioned above, most abuse and neglect goes unreported.

NDIS pricing and workforce

An integral component of providing a quality disability support service is the capacity of the disability workforce. Working conditions are intrinsically linked to the quality of services people receive. Quality services depend on a quality workforce. A stable workforce of professionally trained, skilled and dedicated workers with decent working conditions, job security and competitive wages is required to provide a consistent, high quality service that is respectful of and facilitates individual needs and goals.

Disability support work is currently characterised by a range of conditions that are not conducive to quality jobs. These workforce challenges are well known and include; low wages, inadequate and unpredictable working hours, limited career progression, physically, emotionally and psychologically demanding work, and inadequate supervision. There is real concern across the disability sector that the NDIS will create a class of low paid workers, who lack the required training, skills and job security to provide quality services to people with disability.

In addition to the longstanding issues with workplace conditions in this sector, it is particularly concerning that the current NDIS pricing structure is intensifying these issues at a time when the workforce needs to expand significantly. United Voice has the following concerns with the NDIS pricing structure.

Wage rates

The assumed level of disability support worker is set at SACS level 2.3. The NDIA in explaining the setting of this level states that it is the ‘reasonable minimum qualification and experience level’.6 Setting wage levels at this minimum has obvious problems. It provides no scope for providers to offer wages above this rate, it does not address the already low wages in the sector and therefore it does not address attraction and retention issues.

The NDS State of the Disability Sector Report 2016 noted providers’ concerns with low wage rates:

“Compared to the Australian labour force as a whole, jobs in disability are less likely to offer either a living wage or job security. Jobs in the disability sector are more likely to include fewer hours with the average at 22 hours per week. Across all industries the Australian average is 35 hours per week. A significant proportion of disability workers earn a living by combining two or more short-hours jobs together.

This can adversely affect the quality of service, with a worker’s commitment and focus split and their responsiveness to each individual employer constrained. For people with disability, being supported by the same person(s) tends to correlate with high-quality care. Although workplace bargaining theoretically offers the means for employers and workers to negotiate flexible local solutions that assist everyone, lean pricing is making this hard to achieve in practice.”7

Setting prices at a minimum level only serves to perpetuate an undervaluation of disability support work.

Time allocation of support workers

The pricing structure assumes that, excluding leave, a support worker is working directly with participants for 95% of their time. Allowing only 5% of paid time to undertake administrative duties, training and development, supervision, induction, peer support, etc. is clearly inadequate.

At the same time, the NDIS Quality and Safeguarding Framework recommends mandated induction training for the workforce, the recent Senate inquiry into abuse and neglect in disability likewise recommended mandated rights based training and increased training requirements.8 Delivering a quality NDIS will require a skilled and experienced workforce that has access to ongoing training and knowledge acquisition. In lieu of this being factored into an hourly rate, workers will be increasingly pressured to undertake basic training and knowledge gathering in their own time.

Supervision ratio

A supervisory ratio of 1:15 (moving to 1:18) further exacerbates issues of quality as supervisors are stretched and support workers have limited access to supervision. In particular, setting the level of

Conclusion

United Voice believes that a Quality and Safeguarding Framework for the disability sector should specifically address some of these workforce issues by implementing clear expectations around mandatory qualifications, training, supervision and working conditions. Where workforce issues are addressed, the sector will be better positioned to ensure high quality supports for people with disability that provide for choice and control, with a minimal risk of harm.

United Voice is concerned that the development of the Quality and Safeguarding Framework has not been adequately considered within the context of the current NDIS pricing model. It is questionable if workers and service providers will be able to meet proposed obligations of the Framework due to the flawed pricing model that systematically undervalues the contribution of frontline workers under the NDIS.

To reiterate United Voice is supportive of the creation of the NDIS Quality and Safeguards Commission and of the move to nationally consistent framework for complaints and regulation for the NDIS. It is the level of discretion in vital components of this national scheme that causes us concern.

The implementation of vital components of the Framework such as the Code of Conduct or Practise Standards and a worker screening processes will be undermined without addressing the serious workforce implications in the NDIS. These will quite rightly mandate a range of training and other activities for providers and the workforce that in the current scenario will not be able to be adhered to. This not only sets up providers and the workforce to fail but will not lead to adequate safety and protection for vulnerable people with disability.

United Voice recommends that the Bill not proceed until critical detail such as the Practice Standards and worker screening scheme is available and the workforce has had an opportunity for input.