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Adam on the Government's BSWAT scandal

Speeches in Parliament
Adam Bandt 18 Jun 2014

The reason that we are debating the Business Services Wage Assessment Tool Payment Scheme Bill 2014 and related bill in this parliament is because of two men, two Australians: Mr Nojin and Mr Prior.

Mr Nojin is a worker who has cerebral palsy and epilepsy.

He worked in an 'Australian disability enterprise'—the term of art used in the sector.

He worked for a place called Challenge. One of the services that were offered by Challenge in which Mr Nojin was employed was secure document destruction. It is not the kind of business that is limited to disability enterprises but a business of the kind that you see generally in the office world. There were some other services that the enterprise offered but they were often on a fairly small scale.

Mr Nojin was asked to do a number of tests and tasks when he arrived there that corresponded with some of the work that he did. He was asked to collate pamphlets, which involved inserting fliers into
pamphlets; pen assembly, which involved fitting a ballpoint ink insert into a wooden pen casing; and feeding one crate of pre-sorted documents through a mechanical shredder. The court ultimately said — and I will come to the court case in a moment — that these tasks were simple and repetitive and involved no element of decision making.

There was no need to apply abstract concepts to the work that was being done and, in each case, the work involved simple physical manipulation of limited items. Mr Prior, the other worker who is the reason that we have this bill, is someone who is classified as legally blind, although he did have some vision. He was also classified as having a mild to moderate intellectual disability.

He worked for a different enterprise and, at the time of his first assessment under the test— the assessment tool that is the subject of this bill and the subject of the court cases—his time was split evenly between mowing lawns and some other general gardening tasks. At the time of his second assessment, 90 per cent of his time was actually spent mowing lawns. He was a blind worker, with a mild intellectual disability, who was mowing lawns.

The other 10 per cent of his time was spent raking and disposing of leaves, and he worked under direct supervision. When he went to work, they timed him and assessed how good he was at doing this work. It was found that he took 14 minutes to mow a five by 10 metre area of lawn and his supervisor took nine minutes to mow a similar area—so he took longer but it was not even twice as long as his supervisor. Again, you can look at the tasks that he was performing and, like Mr Nojin in the document centre, you can see that they were relatively simple and straightforward tasks that they were required to perform.

Then came the question of how much to pay these two workers, one of whom was mowing lawns and the other of whom was working collating documents and shredding documents and the like. This is when the enterprises applied what is called the BSWAT, Business Services Wage Assessment Tool, which is the subject of this legislation. When the enterprises put them through that assessment and applied that tool, they asked them questions that bore no relevance to the work that Mr Nojin and Mr Prior were doing, but it had a huge impact on them. When they were asked some of the questions—and I will give examples of some of them in a minute—these two intellectually disabled workers scored low; in fact, for some of the tests they scored zero.

As a result, their pay was substantially cut. Mr Nojin, for example, was assessed as competent for everything, except when they asked him questions like 'What workplace meetings do you attend, and what are these meetings for?' I think this is something that everyone who works in an office anywhere in Australia probably asks themselves a lot of the time, but they asked him and he could not give an acceptable answer and so he scored zero on the test for that part.

They asked him questions like, 'What are some other jobs that people do here?' Again, it was not very evident that it related in any way to the work that he was doing. He could not answer it, so he scored zero. Mr Prior was also asked questions which he found difficult to answer because of his intellectual disability
and which were not related to the mowing of lawns that he was doing.

For example, they asked him, 'How can you help others at work?' He replied that he would try not to get involved—and apparently that was not a good answer and so he was marked down. As a result of going through these tests and scoring zero for a number of things that were not related to the work that he was doing, Mr Nojin ended up being paid $1.85 an hour for doing work for an enterprise that he, by all accounts, including the account of his supervisor, was doing very, very well. It was just that when this tool was applied to him and he scored zero on a number of things, he lost money. It was the same with the other worker. As a result, they very, very bravely took the matter to court.

They took the matter to court believing that they were productive workers who were being massively underpaid, courtesy of a tool that the government had in fact approved. They argued that it was unfair and discriminatory, because someone who had an intellectual disability was never going to do well on that test and was always going to lose money, even though they could do the job very, very well.

In fact, Mr Prior, the lawn mower, at the time of the case going to trial had left that job and was working at Stawell Drycleaners, earning five times the wage that he had previously been earning. The Full Court of the Federal Court said to these two workers, 'You are right. This tool discriminates against you and this system that we have in place does not allow for you as workers with a disability to be paid properly in accordance with your productivity. In fact, by definition, especially if you are a worker with an intellectual disability, you will end up being worse off.' So they won. They were two courageous employees with a disability who took on the system and won. The Full Court of the Federal Court said, 'Yes, you're right. You deserve to be paid more.'

It takes a lot of guts to stand up and be the first ones to go through a legal challenge, but they did it. They did it not just for themselves but also for all those other tens of thousands of workers with a disability who also feel that they are being underpaid at the moment. Those workers have begun a class action to say, 'Just as Mr Nojin and Mr Prior got their just entitlements by going through the courts, so too are we entitled to do that.' This class action, for up to 10,000 workers, is underway.

It is because of that class action that we are seeing this bill. It is because the government now realises that, if Mr Nojin and Mr Prior were successful and were entitled to the basic principle of being paid in accordance with how good your work is, perhaps all of these other workers are as well. So, in what is nothing more than an attempt to derail this class action and disadvantage up to 10,000 workers with a disability in this country who are hoping for justice, the government has brought in this bill. The solicitor representing these employees with a disability calls this an abuse of power —and she is right.

She says that it will mean that those up to 10,000 workers who have a disability are likely, if they are successful in their claim, to have their compensation and their payments, the wages for their productive work, cut by about half. In other words, this bill is being brought in to head off a class action being brought by up to 10,000 workers with a disability.

In that respect, I am not surprised to see the government take action to ensure that the most vulnerable of workers do not get what they are legally entitled to, like Mr Nojin and Mr Prior did, but I must say I am surprised that Labor is supporting them. I am surprised that Labor is supporting the derailing of a class action being brought on behalf of up to 10,000 employees with a disability. I hear some hope in the comments from the Labor speakers that this matter will go to a Senate inquiry and they will look at it.

If, when this goes to the Senate, given that Labor and Liberal are going to vote it through here, the Senate inquiry does not change their minds, at a minimum Labor should look at how to protect those 10,000 workers who currently have a class action on foot. Otherwise, Labor will be responsible for saying to those 10,000 workers, 'You are not entitled to the same justice and victory that Mr Nojin and Mr Prior got.' Labor will be saying to them, 'While those two got through the gate early and, my goodness, a court said they were being underpaid and as workers with a disability they should be entitled to payment in accordance with how they contribute to the workplace, no, we agree with the government that you don't have the right to your day in court and that you should be forced into a humiliating settlement of about half of what you otherwise might have been entitled to.'

It appears to be the case that, unfortunately, this bill will get through this House, but I am not without hope that the process of the Senate inquiry, and perhaps a moment's reflection, will lead the opposition to understand that this is an unnecessary kick in the guts for up to 10,000 workers with a disability, at a minimum, let alone what it is going to mean for all of those who come afterwards.

Everyone in this chamber and in the other place would agree, without a shadow of a doubt, that we need a system at work that encourages employees with a disability to get into work and stay in work. I think that would be universally shared amongst everyone.

The question is: in this instance, with this bill, how much do you pay them? Do you pay them in accordance with their productive capacity and what they can contribute to a workplace? Do you say, 'How do you stack up compared with a worker who does not have a disability? Or do you say, 'We'll apply a test that allows you to be paid much, much less if you have an intellectual disability'?

That is what this bill is trying to get around. It is trying to erase the significance of Mr Nojin and Mr Prior, who took courageous action to hold a government to account. They deserve to be applauded and supported by this parliament; so does everyone involved in the class action who is following in their footsteps on the basis of their significant decision.

I conclude by repeating: it comes as no surprise that the coalition wants to take away the rights of low-paid workers, but I urge the opposition to have a rethink before this bill passes the Senate and to choose to stand up for those workers who are currently seeking justice through the courts and seeking the same right that every one of us would ask for, which is, 'Pay me according to the worth of the work that I do, not who you think I am.'

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