Senator REYNOLDS (Western Australia) (12:36): I rise today in support of the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and the Business Services Wage Assessment Tool Payment Scheme (Consequential Amendments) Bill 2014. These bills represent a necessary interim measure designed to reassure supported employees, their families and their carers by removing perceived liability which could impact on the ability of the ADEs to continue to deliver employment opportunities to thousands of Australians following a recent Federal Court case. Australian disability enterprises are not-for-profit organisations that employ people with disability who require supported work environments and are funded in part by the Commonwealth.

Supported employees are paid a wage using revenue derived from the business activity of these enterprises. Over 20,000 supported workers are employed by 193 disability enterprises across Australia with disabilities ranging from moderate to severe. These enterprises represent an opportunity for individuals with disability to engage in the workforce and to participate in meaningful activities with meaningful outcomes while earning a wage that otherwise they would not be able to. Supported employees earn a pro rata wage calculated using a wage tool with the business services wage assessment tool being one of these. This tool was developed by government in consultation with disability sector stakeholders and was first used in 2004. The tool provides a measure of an employee’s productivity and competence in performing a job and is used to determine the wages of about half of all workers employed by Australian disability enterprises.

Before I discuss the substance of the bills, I want to go back and have a look at the original intent of this scheme. It is important to remember that the scheme was developed in consultation with the disability sector in order to allow for physically and intellectually disabled people, who otherwise may not be able to gain suitable employment, to do so. In the words of disability advocate Mary Walsh, for many with disabilities and their families their ‘work and social lives revolve around their participation in their local jobs and local communities’. Work under the BSWAT has allowed an estimated 20,000 people with a disability to engage and participate in a meaningful way.

A recent Federal Court case found that two supported employees with intellectual disabilities had been discriminated against by the use of the BSWAT in assessing their wage in comparison to those who had physical disabilities. The discrimination that was found to have arisen through the use of the BSWAT was due to the lesser ability of intellectually disabled employees to respond to abstract questions posed to them, even if those answers were not reflective of the manner in which those employees were completing assigned work or interacting with their coworkers. While these proceedings may take some time to resolve, this bill is a proactive measure that establishes a payment scheme that will give reassurance to supported employees, their families and their carers by removing perceived liability that could impact on the ability of all Australian disability enterprises to deliver ongoing employment support.

It is also important to remember that this is a temporary measure, designed to respond to the findings of discrimination while a longer term solution is devised—one that will produce a fair outcome for disabled Australians. The longer term solution will involve the development of a productivity based assessment tool that is relevant to the tasks that employees perform and the phasing out of the current BSWAT. This temporary measure will be implemented with minimal disruption to those employees under that scheme. I believe this is a good, sensible solution and is a fair way of assessing the work done by supported employees. Rather than subjective notions of competency, the value of work will be judged against what is produced or achieved by supported employees. This will be a much more equitable system. In conjunction with the rollout of the NDIS, it will ensure that Australians with disabilities continue to receive the support, assistance and, most importantly, the opportunities they need to thrive and to contribute as any other member of our society would.

This scheme will seek to establish a payment system for supported employees with intellectual disabilities in the ADEs who previously had their wages assessed under the BSWAT. The payment scheme established by the bill will allow eligible persons—those who have an intellectual impairment, have been employed by an Australian disability enterprise and have had their wage assessed under BSWAT—to apply for payments in relation to work they have performed in the past. The payment scheme will deliver payments to eligible workers as quickly as possible. People who consider they are eligible and would like to participate in the scheme must register their interest by 1 May next year. People who wish to test their eligibility and receive an offer must first make an application. Applications can be submitted up until 30 November 2015.

The payment scheme fulfils the ongoing needs of intellectually disabled employees to receive certainty about their employment and to remunerate them for work provided while under the BSWAT system. It is important to note that during the acceptance period the applicant must seek independent legal advice and financial counselling, and this will be funded through the scheme. This will ensure that applicants have a clear understanding of what they are accepting and will provide them an opportunity to raise any concerns with an appropriately qualified person. This is a compromise solution. The strength of this scheme is that it provides certainty of payments to individuals who may be deemed by the Federal Court to have been discriminated against. It will provide access to funds, but in the process will bypass the need for legal proceedings that will be complex, prolonged and, ultimately, have an uncertain outcome for some of the most vulnerable in our community.

A new wage assessment process is to be created in the longer term to be used by ADEs. In support of this, the government has announced that it will provide $173 million to help the supported employee sector work towards new wage arrangements for supported employees working in Australian disability enterprises. This funding will be used in part to support the development and to implement a new productivity based wages tool for use across the supported employment sector. This bill will ensure that employees can continue to contribute to their communities and to work productively for a wage in addition to receiving disability support pensions. It is also important to consider the package of services that supported employees receive at their workplaces in addition to their wage, such as on-site counselling and care.

The benefits received by supported employees cannot simply be reduced to the wages that are paid to them in isolation of that factor only. I heard firsthand in the Community Affairs hearings into this bill that: if the wages for these employees paid by Australian Disability Enterprises were significantly increased and it was not done so in a planned manner and in accordance with a reasonable scheme, it would be unsustainable.

I heard evidence from the Endeavour Foundation, an Australian Disability Enterprise that employs 2,100 supported employees across three states. It is one of the largest employers of supported employees in Australia. They exist for no other reason than to support people with disability to have the same choices of an ordinary life that the rest of us in the community enjoy. They are generally supportive of this scheme.

This scheme will allow them to continue to operate and provide services for their employees; however, if they are forced to move to other assessment models, many of their supported employment sites would no longer be sustainable and would have to close. Evidence provided suggests that up to 90 per cent of supported employees would lose their jobs.

Australian Disability Enterprises are a critical social investment by government. They must remain sustainable and be able to effectively support their workers. Without programs such as those provided by Australian Disability Enterprises, many supported employees with physical or intellectual handicaps would not be able to find employment.

Many of the programs run for the benefit of the employees and are not profit-making enterprises. They exist to ensure that people who could otherwise not participate in the workforce have an avenue in which to contribute to their community, develop skills, and make connections and friendships out of the house.

This bill is commendable and is worthy of support, because it provides certainty to working Australians with an intellectual disability. It also provides a sustainable basis for ADEs to continue to operate by providing payments to a large number of employees that they could otherwise not afford. It signals to supported employees that the government is committed to ensuring that they are paid appropriately and in accordance with a fair scheme, and that they are paid in recognition of what was in the past an unfair scheme.

This scheme—and these bills–must be seen as a balancing act. It must balance the responsibility of the government to respond equitably and fairly to the findings of discrimination by the Federal Court and the continued viability and longevity of Australian Disability Enterprises and the 20,000 Australians who are given an opportunity by these businesses to contribute to our society.

Overall, it is a fair scheme offered in good faith to those who have an intellectual disability, work for an Australian Disability Enterprise and have had their wages assessed under the Business Services Wage Assessment Tool. Let’s remember why this scheme exists and keep in mind the 20,000 disabled Australians that it will continue to support in the workforce. I believe it is a fair scheme that achieves a balance of objectives and, as such, is worthy of the support of the Senate.