Category: BSWAT

Old sheltered workshop

National Organisations applaud the Senate

National Peak Disability Consumer and Advocacy Organisations applaud the Senate vote to block the passing of the Business Services Wage Assessment Tool (BSWAT) Payment Scheme Bill 2014.

In blocking the Bill, the Senate has shown support for the human rights of people with disability to seek fair and full compensation for lost wages through the Federal Court.

We honour the courage of Michael Nojin, Gordon Prior, Tyson Duval-Comrie, with the support of their families, to stand up for their right as people with disability for just and equitable conditions of work.

Paul Cain of Inclusion Australia said “The Federal and High Courts of Australia determined that BSWAT discriminates against people with intellectual disability in the assessment of award wages”.

“Thousands of people with disability who work in Australian Disability Enterprises have been paid, and continue to be paid, wages less than they would be entitled to if they were paid under a fair and equitable award wage assessment system” said Samantha French of People with Disability Australia.

Kairsty Wilson of AED Legal Centre said “Rejection of the BSWAT Bill means that people with disability will maintain their right to legal redress for discrimination in employment and will have their full entitlement to back pay determined by the independence of the Federal Court”.

We are thankful for the political and moral leadership of the Hon. Jenny Macklin MP of the ALP; Senator Rachel Siewert and Adam Bandt MP of The Australian Greens, and Independent Senators Jacqui Lambie, Nick Xenophon, and John Madigan, as well as their advisors and staff who all saw the injustice and steadfastly voted against the Bill.

We acknowledge the work of the Joint Parliamentary Committee on Human Rights chaired by Senator Dean Smith, which found that the BSWAT Payment Scheme Bill was not a just remedy for the discrimination ruled by the courts.

The National Peak Disability Consumer and Advocacy Sector calls on the Commonwealth to:

With all deliberate speed, negotiate a fair compensation settlement for workers with disability, who experienced discrimination and lost wages as a result of BSWAT, in response to the representative action in the Federal Court.

Commit to abolishing BSWAT and transition to the Supported Wage System (SWS) for all employees with disability in ADEs to ensure fairness and equity in the determination of award wages; and,

Consult with people with disability and their representative organisations on the best way to proceed with this transition and a full and fair settlement.

Media: Paul Cain, Inclusion Australia 0419 462 928 or Kairsty Wilson, AED Legal Centre 0411 252 410

Download the media release

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A big day for the rights of people with intellectual disability – part 2

To Whom It Should Concern – Part 2

An alarming concern of individuals, families, advocates and support staff is that reported abuse is frequently not properly investigated and addressed by the current system. Many complaints of abuse have not been addressed due to authorities not taking such complaints seriously and undertaking a full investigation.

We acknowledge that such investigations present a range of difficulties for investigators, but this should never be used a reason for failing to investigate and determine the merits of abuse complaints.

There is little doubt that a national inquiry into the abuse of people with disability in institutional settings has merit. It presents an opportunity for this dark issue to be brought out into the light. Organisations responsible for standards of service and the well being of people with disability for which they receive tax payer’s dollars should be held accountable for abuse that happens as a result of their service.

The media statement by the Disability Advocacy Network of Australia quite rightly emphasises the failure of mainstream governance and quality assurance mechanisms to protect the basic rights of people with significant disability. Governance processes, standards audits of services, internal complaint procedures, incident reports, and many other provider processes are important but clearly insufficient.

One of the most needed solutions is an abuse response system – external to disability service providers – that individuals, families, service staff, advocates or “whistleblowers” can bring complaints and concerns to, knowing that allegations of abuse WILL be investigated.

There needs to be confidence that someone with authority WILL actively investigate complaints of abuse.

Today’s refusal by the Federal Government to respond to calls from the community to hold a national inquiry into the abuse of people with disability – by relying on the Victorian government’s commitment to an inquiry – is a failure of national political leadership.

It begs the question as to how the federal government can expect organisations to provide support which prevents and eliminates abuse when the federal government shows a complete disregard for the urgency to act. This sends the wrong message to potential abusers.

What we need is a review of federal priorities. It only requires the change of one word . . “Stop the boats abuse”.

know your rights lg

A big day for the equal rights of people with intellectual disability – part 1

To Whom It Should Concern – Part 1

Monday 24th November 2014 has been a big day for standing up for the equal rights of people with intellectual disability.

First, the Senate rejected the Government’s bill to introduce the BSWAT Payment Scheme Bill. This Bill was an unjust remedy by the Government to address the discrimination in how the wages of thousands of people with intellectual disability in Australian Disability Enterprises (formerly sheltered workshops) are determined. A discrimination brought to light by two men with disability.

Second, the Australian Law Reform Commission proposed reform to Commonwealth and State laws to ensure that supported decision making is encouraged with the right support; and that representative decision-makers are appointed only as a last resort. The need to be supported in making decisions has never been more pertinent given the NDIS and the emphasis on choice and control.

Third, ABC 4 Corners exposed sexual abuses of people with disability by carers employed by Yooralla, and a governance culture that was inadequate to protect people with disability from this abuse.

The 4 Corners program highlight a number of characteristics of people with significant disability which are apparent. Characteristics that are under-recognised but common across the events of the day.

1. People with significant disability are vulnerable to abuse, neglect and discrimination . .  be it physical, sexual abuse or abuse of equal rights in employment.

2. People with significant disability are “easily led”. People with disability can be used and abused to meet the needs of others at the expense of their rights.

3. People with significant disability are sometimes unable to give valid consent – even after the best supported decision making support.

4. People with significant intellectual disability in segregated employment or accommodation services may have heightened vulnerability because “those who are watching” are just as vulnerable as the people targeted for abuse.

4. People with significant disability often have great difficulty in reporting abuse on their own.

When these “facts” or “characteristics” are considered carefully, there is a strong basis for accommodations and safeguards that are put in place rather than reliance on typical due processes or governance that may be acceptable in other circumstances.

For example, many employees with intellectual disability in ADEs are highly vulnerable to the interests of ADE staff and employers. Many employees in ADEs are easily led to vote for a certified agreement when valid consent is questionable.  It is not a coincidence that people with intellectual disability are subject to discriminatory employment practices in how award wages are assessed.

The Senate decision to reject the BSWAT Bill will ensure that the independence of the Federal Court will ensure that people with intellectual disability – discriminated by the Commonwealth and ADEs – are properly compensated. In other words, why would we let the “discriminator” determine the quantum of compensation and the process or redress. We must also note that some of the sexual abuse identified by 4 Corners involved employees in ADEs. This is not to suggest a juxtaposition between ADEs and abuse – but to point out that people with intellectual disability are vulnerable and this is vulnerability is heightened when grouped with others people with disability in segregated places.

We must also begin to recognise that Australia spends substantial amounts of money on disability support services – and this will only increase under the NDIS. As we saw in the 4 Corners report, there was evidence of “scamming” with clients that did not exist. I have also listened to families who are heavily marketed by disability services competing for the cash families bring to providers when they register for support. This means that – more than ever – advocacy and safeguards against abuse are important(!)

Unfortunately the “angelic” image of disability services is naive.

As 4 Corners point out, there are clearly service providers and staff who are impeccable in their competence and fidelity with the rights and dignity of people with intellectual disability. While addressing the very serious issues of abuse across all disability services we must support those services and staff who are doing ‘the right thing’.

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Minister Fifield must reward genuine effort not failure

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Real Businesses Pay Real Wages. 

Minister Fifield must reward genuine effort not failure. 

The announcement by Minister Fifield of an additional $173 million to support employees get fair wages in Australian Disability Enterprises (ADEs) is welcomed as a step forward by Inclusion Australia.

The announcement, however, does not resolve serious concerns about the treatment of employees with intellectual disability, nor the ongoing viability of ADEs.

We already have a productivity based wage assessment

The announcement fails to recognise that a fair productivity based award wage tool already exists – i.e. Supported Wage System (SWS).

The SWS is recognised by the industrial relations system; the Australian Human Rights Commission, the High and Federal Courts, people with disability and their representative organisations.

The only group to refuse to acknowledge the SWS has been National Disability Services (NDS) representing ADEs. A refusal without valid reason.

The question must be asked; why is Minister Fifield supporting the position of NDS when the evidence and support for the SWS is substantial? When is the Minister going to stand up for people with disabilities and not service providers with a history of discriminating against people with disabilities?

Our support for funding assistance is based on implementing the SWS

Inclusion Australia has repeatedly recognised that fair wages determined by SWS would increase wage costs for ADEs, and that the Commonwealth should provide temporary funding to assist ADEs make the transition.

It is concerning however that the Minister has agreed to pay this cost without requiring that wages are determined by the SWS.

The “future” productivity wage assessment tool being proposed is “unknown”. The refusal to accept the SWS opens the door for ADEs to argue for a wage assessment tool that once again unfairly discounts award wages. A risk which is not necessary.

 

Where is the funding for transition to work and open employment support services?

The Minister in the Australian (21/8/14) says that the government is committed to finding ways to increase employment opportunities for people with disability in the open workforce.

Where is the funding to support this commitment. There are thousands of young people with intellectual disability that can, with the right support, move from school to the open labour market. But specialist transition-to-work and open employment support is severely limited.

Inclusion Australia has proposed, based on current Australian best practise) the development of a national system of transition to work and open employment support for people with significant intellectual disability. What is needed is a funding commitment to make this happen.

The Minister must not reward failure or incompetence

The Minister must address the genuine efforts being made by ADEs under the ’10 Year Vision for Supported Employment’. ADEs that pay their employees using SWS must not be disadvantaged for doing the right thing.

For decades the Australian government has attempted to make a number of ADEs businesses by ‘throwing money’ at them. Today’s funding announcement must not be another exercise of propping up unviable businesses.

Inclusion Australia does not wish ADEs to close. Where ADEs are viable businesses paying real wages they must be supported to continue to provide employment to people with intellectual disability. Where ADEs are not viable the Commonwealth government must consider the option of those services becoming day services so that they can continue  to support people with disability.

The Australian government’s ’10 Year Vision for Supported Employment’ is now in its 3rd year. Inclusion Australia calls on Minister Fifield to release a progress report to demonstrate that this new funding will build on progress.

Real Businesses Pay Real Wages

Real Businesses Pay Real Wages – Wake Up! It’s a reality!

A response to Minister Mitch Fifield

Minister Fifield said in his article, Idealism threatens jobs for the disabled, that “accusations that ADEs exploit people with disability is unfair”.

The Federal and High Courts of Australia ruled that 10,000 employees with intellectual disability were disadvantaged by the use of the Business Services Wage Assessment Tool (BSWAT). What is unfair is the Commonwealth’s refusal to accept responsibility for this unfairness and pay fair compensation.

  • There are some ADEs that do pay employees with intellectual disability fair wages based on the Supported Wages System (SWS), and are not exploiting people with disability. 
  • There are employers in the open labour market that employ people with intellectual disability and pay full award wages or wages based on the SWS.
  • Fair wages for people with intellectual disability is a right and a reality. Disability discrimination is unlawful.
  • If some ADEs can pay fair wages based on the SWS and be viable, why can not all ADEs pay fair wages?
  • What is it about the ‘business structure’ of ADEs that they are unable or unwilling to pay fair wages?
  • If there are ADEs paying employees a fair wage using the SWS, why is there a need to develop a new system?

These are the questions that Minister Fifield fails to address in his article.

The application to the AHRC for an exemption to continue to use the unlawful BSWAT was made by the Commonwealth. The Commonwealth held consultations with people with disabilities, ADEs, and the advocacy sector. The AHRC also provided several months for people to provide submissions.

When the Australian Human Rights Commission asked for evidence that its decision would make ADEs unviable the AHRC reported that the evidence provided was limited and anecdotal. They made a reasonable determination that the Commonwealth and ADEs should change within a year.

Minister Andrews says that people with disability with capacity should work and reduce their dependence on the Disability Support Pension (DSP). Yet Minister Fifield says that we should see the pension as compensation for work.  Does this mean that the Minister is promoting ADEs as a “work for the pension” scheme? Is not dignity in work all about being paid fairly for work done? How can work be dignified if you are being discriminated?

There are people with disability in ADEs getting real wages, getting a reduced DSP, paying tax and accruing superannuation.

There are people with significant intellectual disability working in open employment on real wages, getting a reduced DSP, paying tax and accruing superannuation.

Minister Fifield,  not for the first time states, “there will always be some people with disability who won’t be able to participate in the open workforce”, and yet he also states, “we must stop limiting people by placing low expectations on them”.

The evidence is very clear that people with significant disability intellectual disability can work in jobs that pay real wages. Statements that place low expectations on the work outcomes for people with intellectual disability are discriminatory and at odds with the aims of Government policy and the NDIS.

The Coalition Government’s “commitment to increasing employment for people with disability in the open workforce” is fine rhetoric but where is the action? Inclusion Australia has set out a detailed submission to the Commonwealth government, based on current Australian best practice, on how to build such a system of support. We know what helps to get people with significant disability into the open workforce. Why is the Commonwealth not contracting for best practice?

Inclusion Australia wants the discrimination to stop (we do not want ADEs to close). We have a fair wage assessment tool in the SWS. We have also proposed that the Commonwealth fund ADEs to assist in making the transition to fair award wages using the SWS. Where transformation is not possible Minister Fifield must support ADEs to become community participation programs and work with real businesses to ensure that individuals with significant disability have real employment support options in the future.

Mark Pattison

Executive Director, Inclusion Australia

mark.pattison@inclusionaustralia.org.au

0407 406 647

Parliament Human Rights Committee considers BSWAT Bill

The Human Rights Committee of the Australian Parliament has considered the BSWAT Bill currently before the Parliament and found it wanting …

“The committee notes that the scheme provides for the payment of an amount equal to 50 per cent of what a person would have been paid had their wages been assessed only on the productivity component of BSWAT.4 The precise calculation will be set out in rules determined by the minister.5 However, the committee notes that, while the statement of compatibility states that the scheme provides an ‘effective remedy’ for eligible workers,6 it does not provide any substantive analysis of how the scheme payment rates may be regarded, for human rights purposes, as an effective remedy, understood as being fair and reasonable compensation for the breach of human rights suffered by affected individuals as a result of unlawful discrimination.”

Download a copy of the Report

Make a submission to the Senate Community Affairs Committee by 23 July 2014