SENATOR THE HON MITCH FIFIELD

ASSISTANT MINISTER FOR SOCIAL SERVICES

MANAGER OF GOVERNMENT BUSINESS IN THE SENATE
SENATOR FOR VICTORIA

TRANSCRIPT
ABC Radio National Breakfast
with Fran Kelly
20 March 2015
7:35am
E & OE
Subjects: Business Services Wage Assessment Tool Payment Scheme
KELLY:
Back in 2012 a court found that the pay rate breached the disability discrimination act and up to
10,000 workers were affected. The court ruled that the tool used to calculate the wage rate was
flawed. In response the Federal Government is legislating to address this issue. But in that
legislation, while its offering to restore the back pay, its actually only offering to restore people half
the monies theyre owed. There is a class action currently underway to try and restore 100 per cent
of the wages and in a moment well hear from the lawyer leading that case. But first, Mitch Fifield,
the Assistant Minister for Social Services joins us. Senator Fifield welcome back to Breakfast.
FIFIELD:
Good morning Fran.
KELLY:
Minister, this bill will see workers only receive some of the money theyre owed. In 2012 the wage
rates were found to be in breach of the discrimination act. Why not give people all their money
back?
FIFIELD:
Fran, a few matters of fact. Youre right in December 2012 there was a Federal Court decision in
relation to two individuals, Mr Nojin and Mr Prior. That court decision found that there had been
indirect discrimination against those two individuals through how the Business Services Wage
Assessment Tool was applied. Now that decision only related to those two individuals, and there
was no compensation awarded as a result of that. So at the moment we have a situation where the
courts have not established either discrimination across the board, or an entitlement to payment
across the board. And there is a representative action afoot at the moment and that may well not
find discrimination across the board. What weve done as a government is seek to legislate a
payment scheme to provide a more certain environment for Australian Disability Enterprises, and

also for the people in those enterprises who have previously been assessed under the Business
Services Wage Assessment Tool.
KELLY:
So youre proposing a payment scheme where people will be assessed individually? Is that right?
Theres no across the board set payment?
FIFIELD:
Thats right. We have a formula and the formula is half of the difference between the amount that
would have been paid had only the productivity element of the Wage Assessment Tool been
applied and the amount that they were paid. So the Wage Assessment Tool has two elements. A
productivity component, and a competency component. And the Federal Court found in relation to
those two individuals that the competency component was incorrectly applied.
KELLY:
So why are you only offering half of the amount then?
FIFIELD:
As I say, there has been no determination by courts that there is money payable. But weve come
up with a formula and there are some important additional elements in relation to that formula. That
includes that individuals will only be required to accept that amount plus they will also receive an
amount that will cover any tax liability that may have been incurred. That also, they will have
access to lump sum in arrears tax offset treatments. And also importantly, that payment wont be
treated as income under social security law.
KELLY:
Okay so lets see if Ive got this right. Under the law that you hope will go through next week,
people who access the payment and accept the payment will get all of those things you just
outlined there. Potentially, they could take another path, they could go to the courts and try and put
the case for 100 per cent of the money theyre owed. Or what they claim is 100 per cent of the
money and have that assessed in the courts. But they cant do both, they cant accept your
payment, and then still test it in the court to see if theres a shortfall?
FIFIELD:
Thats right, were offering an additional choice. At the moment the only avenue that people have is
the representative action. What were saying is that we would like people with disability who have
been assessed under the BSWAT tool, who feel that they may have had an economic loss, that
they should have an additional option. They can obviously accept their legal rights and pursue that
through the courts, or they can pursue our streamlined process and get certainty and an amount of
money sooner.
KELLY:
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Streamlined, but just a little bit cheap isnt it? I mean, you acknowledge that it is only half the
productivity component. So even though its got all those other elements you acknowledge that
they, on the face of it, could go through the courts and perhaps achieve more.
FIFIELD:
Fran, we dont know what the outcome of the court could be. It could be less, there could be a
determination that there isnt discrimination, we just dont know what the outcome of the courts will
be. So what were doing is were offering certainty. Were offering a guaranteed amount of money,
a streamlined process, weve got a formula for that. Youve mentioned that it's 50 per cent of the
productivity only assessment. But youve got to add to that the fact that individuals will have
additional money to cover any tax liability. That they will have access, as I said, to the lump sum in
arrears tax offset treatment. And they will also not have the payment counted as income under
social security law. So the actual money that people get could be significantly above 50 per cent.
And typically, settlements in court cases are usually only a fraction of what is actually sought.
KELLY:
Youre listening to RN Breakfast, our guest is Senator Mitch Fifield, the Assistant Minister for Social
Services. The legal case running, suing the Government for 100 per cent of the wages to be paid
back, if thats successful and the Government does have to pay that money, and I know were in
the hypothetical realm here but we will be hearing from the lawyer Josh Bornstein in a minute. Will
that affect the funding for ADEs? For these employment agencies?
FIFIELD:
No, we have separate provision for any settlement that there would be. We have separate
provision for funding of the Business Services Wage Assessment Tool Payment Scheme. So
whatever happens, that is not going to affect the $220 million a year that the Government gives to
Australian Disability Enterprises. But Fran I should also mention that we have announced $173
million, which will be used to help develop a new wage assessment tool. And also to assist
Disability Enterprises with the transition to that new wage assessment tool. So weve got an
arrangement to deal with the future, in terms of the $173 million to develop a new tool and assist
ADEs with the transition costs. But weve also got in prospect, if legislation passes the Senate, a
payment scheme to assist with the past.
KELLY:
Because there is some suggestion that ADEs are telling the families of the people who are trying
to get their money back, that some of them will be sacked unless the bill is passed and they drop
their legal action.
FIFIELD:
Look theres a lot of concern in Disability Enterprises about the uncertain environment that they are
in. What we hope is that the BSWAT Payment Scheme will help to create a more certain
environment for Disability Enterprises, for supported employees and for their families. And Fran I
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shouldve mentioned before that with our Payment Scheme, people can only take part in our
Payment Scheme if they furnish a certificate indicating that they have received independent legal
advice, and also independent financial advice to make sure that theyre in a good position to
determine what is in their best interests. And also, we will pay for that independent legal advice and
that independent financial advice.
KELLY:
And just finally Minister as it currently stands the old tool is still in place. Does this mean some
people a still being paid at 99 cents an hour?
FIFIELD:
Well there have not been any fresh assessments under the BSWAT tool for quite some time. And
you mentioned the individual dollar amount. Its really important I think that we dont just separate
out that individual dollar amount because people in Disability Enterprises really get a package.
They get the hourly rate, they get the Disability Support Pension, they get the health benefits card
and also the disability support workers that the Commonwealth pays for. And, of course, they get
the dignity of work and they get the social life that comes with work, something that we all take for
granted. So youve really got to look at the package that individuals get, rather than isolating out
any single element.
KELLY:
I think thats right. Theres no way youd like these development enterprises to be shut down
because that shuts down a whole avenue of work and opportunity for people. Mitch Fifield, thank
you very much for joining us.
FIFIELD:
Thanks Fran.
KELLY:
Senator Mitch Fifield is the Assistant Minister for Social Services and the Bill that hes prepared is
likely to be considered in the Senate next week.
ENDS
Media contact:
Lydia Paterson | 0409 792 081 | lydia.paterson@dss.gov.au