NDIA Accountability Project

Protecting worker entitlements under the NDIS

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25 January 2012

Hon Senator Moore

Chair Community Affairs - Legislation Committee

Senate Standing Committees on Community Affairs

PO Box 6100

Parliament House

CANBERRA ACT 2600

Via email: community.affairs.sen@aph.gov.au

Dear Senator Moore

Re: Inquiry into the National Disability Insurance Scheme Bill 2012

Attached please find a submission on behalf of the Health Services Union in relation to the National Disability Insurance Scheme Bill 2012.

The HSU is available to expand on the matters contained in our submission at the convenience of the Committee.

Yours Sincerely

LLOYD WILLIAMS

ACTING NATIONAL SECRETARY

Submission to the Senate Community Affairs

Legislation Committee Inquiry into the National

Disability Insurance Scheme Bill 2012

Health Services Union

25 January 2012

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HSU Submission to the Senate Community Affairs Legislation Committee

Inquiry into the National Disability Insurance Scheme Bill 2012

  1. The Health Services Union (HSU) welcomes the opportunity to make a submission to the

Senate Community Affairs Legislation Committee Inquiry into the National Disability

Insurance Scheme (NDIS) Bill 2012. The HSU is a national union representing a diverse range of health professionals and employees in the health and community service sectors. The HSU represents members covering a broad range of skill sets including radiographers, medical scientists, pathology workers, psychologists, disability workers, mental health workers, ambulance officers, aged care workers, kitchen staff, cleaners, aboriginal health care workers and personal care attendants. Our coverage varies from state to state and across Australia. The HSU represents the interests of members in the workforce to improve member outcomes and contribute to the ongoing improvement of health and community care policy, services and facilities for clients.

  1. The HSU branches nationally represent the industrial and professional interests of disability workers and have a long history of productive involvement and participation in policy development, service improvement, and reform in our areas of expertise. For the last 100 years the union’s focus has consistently centred on the provision of a skilled and competent workforce to support evolving service systems in this sector.

  2. Our members work with some people with disabilities who are extremely vulnerable. Those who have lost or never had capacity to voice or make their own decisions, or whose capacity is seriously limited and will generally remain limited. People who are unable to make even a decision to feed or care for themselves and who require full time and total care We know and understand the concerns workers have about the people in their care and their concerns for those for whom they have been unable to provide full care or services.

  3. The HSU welcomes the introduction of a National Disability Insurance Scheme (“NDIS”) and the benefits this can bring people living with disabilities. We also acknowledge the myriad of workforce issues that arise in relation to the introduction of such a scheme.

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Submission

  1. One of the significant facets of the Bill is that the Bill endeavours to cover the provision of an insurance scheme to ensure services for people of all abilities. The principles underpinning the legalisation are based on the premise of self-determination for individuals, the minimisation of disability and maximisation of social and community inclusion and recognising that all people have the right to reach for and maximise their potential.

  2.  It remains vitally important that those who are the most vulnerable, who may not be able to

make their own decisions, do not lose fundamental protections at the same time as ensuring that people of all abilities are able to exercise their rights to determine their future to the fullest extent.

  1. Some people who will be covered by the scheme do not have the ability to make decisions or communicate preferences to others. They still have the right to receive care and support, to maximise self-determination, social inclusion and participation. They also have the right to expect that any funded scheme will include base standards for provision of services and minimum protections for participants.

  2. In some cases the protections individuals may require range through to control and/or

decision making by others. At the same time their rights to maximise self-determination and decision making must be fostered and protected.

  1. We are concerned that the Bill does not adequately deal with protective mechanisms, and leaves what protections may be available for the rules. Indeed in most cases the Bill only provides that the rules ‘may make provision’ for standards or qualifications. In our submission this is simply insufficient and a serious deficiency in the Bill.

  2. HSU believes the minimum criteria, qualifications and standards should be set out in the Bill rather than in rules which are yet to be developed. Failing this, the Bill must be redrafted to require rules to be made that address these issues and, where appropriate, require them to be met by the relevant party/s.

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Registered Providers of Supports

  1. Registered providers of supports, either person or entity, must be approved as a registered provider by the CEO if they make an application and meet the criteria under the NDIS rules. The provision is clear, it states without ambiguity that the CEO ‘must approve the person or entity’, [emphasis added] not may.

  2. There are no minimum criteria or tests under the Bill. And currently there are no rules.

  3. We submit that leaving these provisions entirely to rules is inadequate. There must be minimum standards contemplated by the Bill. The only reference to standards or qualifications provides that the ‘rules may make provision…, including by prescribing criteria… ’ [emphasis added] at s73(1) and s71(2).

  4. While HSU considers the types of criteria referred to above appropriate matters, there is no guarantee that rules concerning these criteria will be made, and, that if they are made, those rules will be mandatory or even preferred. Clearly such a circumstance potentially leaves people with limited ability for self-determination in a vulnerable position.

  5. In our submission this requires correction.

  6. In connection with the approval of persons or entities as providers of supports, the Bill must provide that the rules shall prescribe a minimum set of the criteria outlined at s73(1)

a) compliance with prescribed safeguards; and b) compliance with prescribed quality assurance standards and procedures; and c) qualifications of person or entities or employees of person or entities. 17. We further believe this list must be expanded to include mandatory relevant Police and Working with Children checks.

  1. In connection with the registered providers of supports, the Bill must provide that the rules shall prescribe the minimum set of criteria outlined at s73(2)

a) the consequences of registered providers of supports failing to comply with this Bill, the regulations or the National Disability Insurance Scheme rules; and

b) requirements with which registered providers of supports must comply including in relation to the following:

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i. governance; ii. business practice; iii. accounting practice; and iv. the obligations of registered providers of supports in relation to the monitoring of compliance; and

v. the process for handling complaints involving registered providers of support; and vi. auditing requirements in relation to registered providers of supports.

  1. We further submit that there should be a distance between the person/s managing the finances on behalf of an individual [if and where another person is nominated and that person is a real person not an entity] and the individual actually providing the service/ support. Put simply, the rules should preclude an individual from managing NDIS funds on behalf of a participant, plus determining the rate and paying themselves for the supports they provide to the participant of the scheme.

  2. It is a fundamental requirement of the state to protect its vulnerable citizens. This does not disappear because the state needs to ensure access to the basic human rights for people with disabilities to ‘realise their potential for physical, social, emotional and intellectual development’.

Nominees

  1. HSU has corresponding concerns relating to the duties, responsibilities and appointments of nominees. Currently the Bill does not provide for a fit and proper person test.

  2. Again we believe that it is fundamental to ensuring the protection of those individual participants who are vulnerable that the Bill provides that rules must be made and that nominees must meet minimum standards, requirements and qualifications as appropriate to the services and assistance provided to the participant.

  3. The only requirement imposed by the Bill is that the nominee must be able to comply with s80, the duties of a nominee. A ‘plan nominee’ may be responsible for the management of the scheme funds for and on behalf of the participant. So while the implicit concept behind a plan nominee is that a participant at least requires assistance to with the plan and /or management of funds, there are no criteria or minimum standard that a nominee must meet to be appointed.

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  1. Other than the references at s89-92 relating to cancellation or suspension of the appointment of a nominee, the sole reference to criteria concerning the appointment of a nominee is contained at s88(6). At s88(6) the Bill provides that the NDIS rules ‘may prescribe‘:

a. persons who must not be appointed as nominees; and b. criteria to which the CEO is to have regard in considering the appointment of a nominee. [emphasis added]

  1. It is anomalous that a nominee’s appointment may be suspended or cancelled where there is suspicion or evidence of ‘severe physical, mental or financial harm’ to a participant but there is no review of an individual’s suitability for the post, prior to appointment.

  2. In our submission this minimalist approach is insufficient and requires correction. There must be minimum criteria a nominee is required to meet prior to consideration. We believe nominees should be subject to a clearly defined minimum fit and proper person definition. In addition the rules must prescribe relevant criteria for the specific nominees relating to the assistance and/or role they will provide for the participant. We additionally submit that nominees should be required to undergo relevant Police and Working with Children checks.

  3. It is clear that the provisions for cancellation and suspension should be provided. In our view it is equally clear that similar tests should apply to the application or review of persons prior to the appointment of that person as a nominee.

Protection for Workers

  1. The Bill in its current form does not deal with any matters relating to the people who will ultimately be employed to provide services and support under the National Disability Insurance Scheme. HSU considers this a significant and fundamental flaw.

  2. We understand that other legislation seeks to protect workers and their entitlements. However we vehemently oppose leaving this Bill without any reference to their protections or minimum entitlements.

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  1. The unfortunate potential of the NDIS is that while it seeks to provide Human Rights to a group so long overlooked, it fails to recognise that in its current form it threatens to remove or diminish the Human Rights for workers providing services under the scheme. The Human Rights of a group should not subsume those same rights of another group.

  2. There is no necessity to seek to replicate provisions from other legislation; in fact we would argue this would be a flawed approach. The HSU submits that the Bill should provide for the minimum wages, entitlements and protections accorded under the Fair Work Act, health and safety, and compensation legislation.

  3. We submit that the Bill must require providers to meet minimum standards and protections as a condition of continued funding and submit these be properly referenced in the Bill itself. At the least meeting minimum requirements should be subject to rules which must be made under the NDIS Rules.

Lloyd Williams

Acting National Secretary

Health Services Union

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