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Business Services Wage Assessment Tool
Payment Scheme Bill 2014
Business Services Wage Assessment Tool
Payment Scheme (Consequential Amendments) Bill 2014
Portfolio:
Social Services
Introduced: House of
Representatives, 5 June 2014
Purpose
1.1
The Business Services Wage Assessment Tool Payment Scheme Bill 2014 (the
bill) was introduced with the Business Services Wage Assessment Tool Payment
Scheme (Consequential Amendments) Bill 2014. The bill responds to the Federal
Court’s decision in Nojin v Commonwealth of Australia, which
found the application of the Business Services Wage Assessment Tool (BSWAT) to
be discriminatory.[1]
BSWAT measures not only work productivity but also competency, and the
competency aspect of BSWAT was found to have a discriminatory effect on
employees with an intellectual disability. The bill establishes a payment
scheme for eligible current and former employees of Australian Disability
Enterprises for work previously performed whilst earning wages calculated using
BSWAT.
Committee view on compatibility
1.2
The principal rights engaged by this bill are the right to an effective
remedy, the right to just and favourable conditions of work and the right to
equality and non-discrimination, including the right of persons with
disabilities to be recognised as persons before the law and to the equal
enjoyment of legal capacity.
Right to an effective remedy
1.3
Article 2 of the International Covenant on Civil and Political Rights
(ICCPR) requires States parties to ensure access to an effective remedy for violations
of human rights. States parties are required to establish appropriate judicial
and administrative mechanisms for addressing claims of human rights violations
under domestic law. Where public officials have committed violations of rights,
States parties may not relieve perpetrators from personal responsibility
through amnesties or legal immunities and indemnities.
1.4
States parties are required to make reparation to individuals whose
rights have been violated. Reparation can involve restitution, rehabilitation
and measures of satisfaction—such as public apologies, public memorials,
guarantees of non-repetition and changes in relevant laws and practices—as well
as bringing to justice the perpetrators of human rights violations.
1.5
Effective remedies should be appropriately adapted to take account of
the special vulnerability of certain categories of person including, and
particularly, children.
Whether payment amounts constitute
an effective remedy
1.6
As noted above, the bill seeks to establish a payment system for
supported employees (with an intellectual impairment) of Australian Disability
Enterprises who previously had their wages assessed under BSWAT. This follows
the Federal Court’s decision in Nojin v Commonwealth of Australia, which
found the application of the BSWAT to be discriminatory.[2]
1.7
The statement of compatibility notes that the bill engages and may limit
the right to an effective remedy, particularly with regard to the fact that the
scheme will not make payments to individuals who 'seek redress through the
courts or other systems'. The statement of compatibility concludes that the
bill is compatible with this right because, to the extent that it 'may be
perceived to limit human rights, those limitations are reasonable, necessary
and proportionate'.[3]
1.8
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.
1.9
The committee notes that information regarding the factors taken into
account in determining the amount of scheme payments is particularly relevant
to the human rights assessment of whether the scheme provides an effective remedy.
The continued use of BSWAT to assess the wages of individuals with an
intellectual disability, discussed below, is also relevant to this assessment.
1.10
The committee therefore seeks the advice of the Minister for
Social Services as to whether the proposed scheme payment amount is compatible
with the right to an effective remedy.
Continued use of BSWAT to assess
the wages of individuals with an intellectual disability
1.11
As noted above, the bill establishes a payment scheme for eligible
current and former employees of Australian Disability Enterprises for work
previously performed whilst earning wages calculated using BSWAT.[7]
1.12
The committee notes that the Australian Human Rights Commission (AHRC)
has granted a 12-month exemption from the operation of certain provisions of
the Disability Discrimination Act 1992 to allow for the continued use of
BSWAT. The exemption contains several conditions, including a requirement that
the Commonwealth take all necessary steps to transition as quickly as possible
from the BSWAT to the Supported Wage System, or an alternative tool approved by
the Fair Work Commission.
1.13
In the committee's view, the extent to which the quantum of the proposed
scheme payments may constitute an effective remedy is particularly difficult to
assess in the absence of a government decision as to the appropriate tool for
the assessment of the wages of persons with a disability.
1.14
Further, the committee considers it unlikely that the bill could be
assessed as providing an effective remedy while affected individuals continue
to be paid wages assessed by the use of BSWAT.
1.15
The committee therefore seeks the advice of the Minister for
Social Services as to what steps are being taken in accordance with the AHRC
exemption, and the likely timeframe for transition to the Supported Wage System
or an alternative tool approved by the Fair Work Commission.
Effect of scheme payments on legal
remedies
1.16
The bill provides that, if a person accepts a payment under the scheme,
the effect is twofold in respect of access to legal remedies. First, the person
will cease to be a member in any of a number of specified proceedings. Second, a
statutory release and indemnity provision will immediately operate to relieve
the Commonwealth, each Australian Disability Enterprise and all other people
from further liability.[8]
In relation to these measures, the statement of compatibility notes:
There could be a perception that a human right to an
effective remedy is being limited because...acceptance of a payment from the
scheme releases the Commonwealth, Australian Disability Enterprises and all
other persons from liability in relation to unlawful discrimination associated
with the use of a BSWAT assessment to determine the wages of that individual.[9]
1.17
The statement of compatibility explains that these measures are intended
to serve the objective of preventing 'the Commonwealth utilising taxpayer funds
to pay more than once for the same, or similar, claims in relation to the
payment of wages assessed using the BSWAT'.[10]
1.18
The committee notes that, in addition to these measures, the statement
of compatibility states that it is intended that 'the scheme will not pay
compensation, but will provide a payment to eligible people',[11]
and that any payment made under the scheme will not lead to any admission of
liability on the part of the Commonwealth.[12]
1.19
In the committee's view, the release and indemnity provisions, and the
positing of the scheme as not being ‘compensatory in nature' may limit the
effectiveness of the remedy provided under the bill, notwithstanding the
characterisation of the scheme as 'proportionate' in the statement of
compatibility.[13]
Taken together, in light of the Federal Court finding that the
application of the BSWAT constituted unlawful discrimination, the release and
indemnity provisions; the expressing of offers as payments instead of
compensation; and the refusal to make admissions of liability give rise to a
concern that the scheme does not contain the requisite elements of an effective
remedy to the unlawful discrimination found to have taken place.
1.20
The committee notes that the proposed release and indemnity provisions
would appear to be able to operate so as to bar a person from accessing a legally
effective remedy.
1.21
The committee therefore seeks the further advice of the Minister
for Social Services as to whether the proposed release and indemnity provisions
are compatible with the right to an effective remedy.
Lack of effective review mechanisms for persons excluded
from the scheme
1.22
The payment scheme proposed by the bill would not provide payments for
affected persons who have received an 'alternative amount'. This is defined as
being where a person has accepted or been paid money in relation to or
settlement of a claim made in relation to matters related to the discriminatory
BSWAT assessments.
1.23
The committee notes that the statement of compatibility states that the
scheme 'provides an effective remedy to...[affected] workers, while also
providing effective mechanisms for internal and external appeal for the scheme
itself'.[14]
However, there appears to be no internal or external review provisions for
people deemed to be ineligible for the scheme due to having an 'alternative
amount'.[15]
1.24
The committee notes that this represents a limitation on the right to an
effective remedy. However, the bill provides no assessment of the compatibility
of this apparent limitation on the right.
1.25
The committee's usual expectation where a right may be limited is that
the statement of compatibility set out the legitimate objective being pursued,
the rational connection between the measure and that objective, and the
proportionality of the measure.
1.26
The committee therefore seeks the advice of the Minister for
Social Services as to whether the lack of effective review mechanisms for
person who have received an 'alternative amount' is compatible with the right
to an effective remedy, and particularly:
-
whether the bill in this respect is aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is reasonable and proportionate measure
for the achievement of that objective.
Secretary-appointed external
reviewer
1.27
The committee notes that the external review mechanisms provided in the
bill do not enable a person to seek merits review through the Administrative
Appeals Tribunal. Instead, proposed section 27 requires the Secretary to
appoint an external reviewer.
1.28
The committee is concerned that this approach has a number of
consequences that may not be compatible with the right to an effective remedy.
For instance, the external reviewer may request the Secretary to exercise his
or her powers to seek further information but 'only if the Secretary considers
it appropriate to do so;'[16]
and the Secretary may 'refuse to comply with the request and inform the
external reviewer',[17]
in cases 'where the Secretary has already sought the information and the
applicant or person has provided a reasonable explanation as to why the
information cannot be provided'.[18]
1.29
However, the statement of compatibility does not provide an explanation
for why this approach is preferable to a right of review through the Administrative
Appeals Tribunal.
1.30
The committee therefore seeks the advice of the Minister for
Social Services to whether the approach of a Secretary-appointed external
reviewer as opposed to allowing access to the Administrative Appeals Tribunal
is compatible with the right to an effective remedy, and particularly:
-
whether the bill in this respect is aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is reasonable and proportionate measure
for the achievement of that objective.
Right to just and favourable
conditions of work
1.31
The right to work and rights in work are guaranteed in articles 6(1), 7
and 8(1)(a) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR).[19]
1.32
The UN Committee on Economic, Social and Cultural Rights has stated that
the obligations of States parties to the ICESCR in relation to the right to
work include the obligation to ensure individuals their right to freely chosen
or accepted work, including the right not to be deprived of work unfairly,
allowing them to live in dignity. The right to work is understood as the right
to decent work providing an income that allows the worker to support themselves
and their family, and which provides safe and healthy conditions of work.
1.33
Under article 2(1) of ICESCR, Australia has certain obligations in
relation to the right to work. These include:
-
the immediate obligation to satisfy certain minimum aspects of
the right;
-
the obligation not to unjustifiably take any backwards steps
(retrogressive measures) that might affect the right;
-
the obligation to ensure the right is made available in a
non-discriminatory way; and
-
the obligation to take reasonable measures within its available
resources to progressively secure broader enjoyment of the right.
1.34
The right to work may be subject only to such limitations as are
determined by law and compatible with the nature of the right, and solely for
the purpose of promoting the general welfare in a democratic society.
Whether payment amounts constitute
adequate remuneration
1.35
As described above, the bill would establish a scheme that provides for
the payment of an amount equal to 50 per cent of what an affected person would
have been paid had their wages been assessed only on the productivity component
of BSWAT.
1.36
The committee notes that, to the extent that the payments provided for
by the scheme would be less than what an affected person would have been
entitled to had their wages been assessed by a non-discriminatory method, the
bill may represent a limitation on a person's right to receive fair and just
compensation for their work. However, the statement of compatibility provides
no assessment of this potential limitation on the right to work and rights at
work.
1.37
The committee's usual expectation where a right may be limited is that
the statement of compatibility set out the legitimate objective being pursued,
the rational connection between the measure and that objective, and the proportionality
of the measure.
1.38
The committee therefore seeks the advice of the Minister for
Social Services as to whether the basis for the calculation of the payment
amount using these principles will allow for adequate remuneration compatible
with the right to just and favourable conditions of work, and particularly:
-
whether the bill in this respect is aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is reasonable and proportionate measure
for the achievement of that objective.
Rights to equality and
non-discrimination
1.39
The rights to equality and non-discrimination are guaranteed by articles
2, 16 and 26 of the International Covenant on Civil and Political Rights
(ICCPR).[20]
1.40
These are fundamental human rights that essential to the protection and respect
of all human rights. They provide that everyone is entitled to enjoy their rights
without discrimination of any kind, and that all people are equal before the
law and entitled without discrimination to the equal and non-discriminatory protection
of the law.
1.41
For human rights purposes 'discrimination' is impermissible differential
treatment among persons or groups that result in a person or a group being
treated less favourably than others, based on one of the prohibited grounds for
discrimination.[21]
1.42
Discrimination may be either direct or indirect. Indirect discrimination
may occur when a requirement or condition is neutral on its face but has a disproportionate
or unintended negative impact on particular groups.
1.43
The Convention on the Rights of Persons with Disabilities (CRPD) further
describes the content of these rights, describing the specific elements that
States parties are required to take into account to ensure the right to
equality before the law for people with disabilities, on an equal basis with
others.
1.44
Article 5 of the CRPD guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly
prohibits all discrimination on the basis of disability.
1.45
Article 12 of the Convention on the Rights of Persons with Disabilities
(CRPD) requires States parties to refrain from denying persons with
disabilities their legal capacity, and to provide them with access to the
support necessary to enable them to make decisions that have legal effect.
Provision for use of nominees
1.46
The statement of compatibility notes that the 'scheme's target group is
vulnerable because they have an intellectual disability', and lists a number of
mechanisms that are intended to increase the choice and control of affected individuals,
including:
-
allowing the provision of nominees;
-
requiring nominees to ascertain the preferences of the applicant
and to act in a manner giving effect to those wishes; and
-
protecting the rights of the person with disability by requiring
the nominee to declare any interest, pecuniary or otherwise, in the outcome.[22]
1.47
While the committee acknowledges that some people with an intellectual
impairment may benefit from the appointment of a nominee, it considers that
provision for use of nominees must be accompanied by adequate safeguards to
ensure that the represented person's autonomy, will and preferences are
respected and that the nominee acts to support, rather than substitute, the
decision making of the represented person.[23]
1.48
In this respect, the committee is concerned that the bill may not, in a
number of respects, ensure that nominees support, rather than substitute, the
decision making of represented persons.
1.49
For example, the committee notes that the criteria the Secretary is to
apply in considering the appointment of nominees are to be contained in as yet
unpublished rules.[24]
The rules may also prescribe and modify duties of a nominee, which may include
duties requiring the nominee to support decision making by the participant
personally, or to have regard to and give appropriate weight to the views of
the participant or inform the secretary and participant of declaring any
interest, pecuniary or otherwise, in the outcome.[25]
With these matters remaining undefined and discretionary, there is considerable
uncertainty as to precisely how the appointment of nominees, and their
associated duties and obligations, will ensure that the effective choice and
control of represented individuals is achieved.
1.50
The committee notes that the statement of compatibility provides no
assessment of this potential limitation on the rights of person with disabilities
to be recognised as persons before the law and to the equal enjoyment of legal
capacity.
1.51
The committee's usual expectation where a right may be limited is that
the statement of compatibility set out the legitimate objective being pursued,
the rational connection between the measure and that objective, and the proportionality
of the measure.
1.52
The committee therefore seeks the advice of the Minister for
Social Services as to whether the decision making models in place are
compatible with the right to equality and non-discrimination, and particularly:
-
whether the bill in this respect is aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is reasonable and proportionate measure
for the achievement of that objective.
Timeframes applying to scheme
1.53
The statement of compatibility for the bill notes that there are 'strict
timeframes for the scheme'. [26]
These include a requirement for registering by 1 May 2015, and lodging an
application by 30 November 2015; timeframes will also apply to acceptance of an
offer and applications for a review of a determination. There are no avenues
for extension of the proposed deadlines where a review of a determination is
being sought.
1.54
The objective of the strict timeframes is identified as being to promote
the delivery of payments to eligible workers 'as quickly as possible'.
1.55
The committee notes also that there are no positive obligations on the secretary
to ascertain whether or not a person understands the offer, with the effect
that a person is taken to have declined an offer for payment simply by not
taking any action by the end of the acceptance period.[27]
1.56
The committee notes that the application of these provisions in practice
may amount to indirect discrimination, to the extent that they may have a disproportionately
negative effect on people with an intellectual impairment. For example, such
people may need more time and flexibility in order to access necessary support
and advice to facilitate the exercise of their personal choice and control in
responding to an offer. The strict timeframes, and lack of opportunity for
extensions to seek a review, may therefore limit the right of such persons to
enjoy legal capacity on an equal basis with others, and to be provided with
access to the support necessary to exercise that legal capacity and to avail
themselves of their rights. However, the statement of compatibility provides no
assessment of this potential limitation of those rights.
1.57
The committee's usual expectation where a right may be limited is that
the statement of compatibility set out the legitimate objective being pursued,
the rational connection between the measure and that objective, and the proportionality
of the measure.
1.58
The committee therefore seeks the advice of the Minister for
Social Services as to whether the strict scheme timeframes are compatible with
the right to equality and non-discrimination, and particularly:
-
whether the bill in this respect is aimed at achieving a
legitimate objective;
-
whether there is a rational connection between the limitation
and that objective; and
-
whether the limitation is reasonable and proportionate measure
for the achievement of that objective.
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