I had one of those ‘disappointed, but not surprised’ reactions when we read of the disability support workers who had been underpaid by over $40,000 (read this Yahoo article and this Mirage article to find out more). Disappointed because it’s another example of workers who are doing critical and difficult jobs in support of people with disabilities being undervalued. But I’m not surprised for a range of reasons.
- New entrant service providers
“The Fair Work Ombudsman was concerned about the potential for non-compliance with workplace laws among NDIS service providers because of the sector’s rapid growth, with increased competition from new, relatively inexperienced employers.”
Sandra Parker, Fair Work Ombudsman
For the past year, we’ve been running our NDIS Success program – which is designed to increase the supply of NDIS services into the market. NDIS plans continue to be underutilised, with the latest reports showing that 33% of plan funds are unspent. These are services that participants have been assessed as needing, so underutilisation is a warning sign that people with disabilities are not able to access the services that they need to live an ordinary life.
What’s been interesting about the NDIS Success program is that it has attracted a very different cohort of disability service providers than the established not for profit organisations that we have been working with for many years. Much of the interest in developing new NDIS services has come from sole traders and start-ups. Many of these are ideally placed to enter the market – they are allied health workers and support workers who are either looking at setting up a new business or extending their established services to NDIS participants. Others are experienced businesspeople, who recognise the need to bring in people with experience in disability services. But, the ability for providers to set up and provide services – unregistered – to the three-quarters of NDIS participants who manage their own plans, or have a plan manager, is a concern when it comes to the delivery of safe, quality services to participants, and the fair payment of their staff. The providers that were audited by the Fair Work Ombudsman (FWO) were providing ‘various forms of assistance to NDIS users, such as accommodation services, household tasks, community participation and personal mobility equipment’ – and providers do not need to be registered to provide these services to plan-managed and self-managed participants.
There are new providers that are positively disrupting provision with genuine, person centred services, and then there are those who are seeing the opportunity in a $20bn+ market, but are not necessarily well equipped to meet the needs of participants or deliver fair employment to workers.
- The disability workforce
The trigger that prompted authorities to investigate worker payments is interesting. Alongside the observed increase in sector growth, the FWO realised that the workers providing such services are likely to be vulnerable. The FWO media release doesn’t say how these workers are vulnerable, but our experience of working with the sector indicates that a lot of frontline workers are recent migrants from CALD communities who may not understand the employment protections they are entitled to under the Australian system.
- Complex pricing
Whether they are new or established providers, one of the most common areas for us to work on with clients is ‘what can we charge’? The NDIS price guide is complex. There are all sorts of anomalies around when you can – or can’t – charge for non-contact time with clients, or travel to or from client appointments. Failure to pay the correct travel allowances to employees was one of the most common areas of underpayment, and is an issue we see often, even with established providers.
- The SCHADS Award
So, I’m disappointed – but not surprised. We’ve yet to do anything as a nation to seriously challenge the low paid, casualised workforce structure in disability and aged care, so why would we be surprised if nothing changes? The Fair Work Amendment Act 2021 has taken existing case law around casual conversion and placed it into statute, with a definition of casual employment, a casual employment information statement (CEIS), and provisions for casual employment conversion to permanent employment. But… the requirement to offer employment conversion only applies to employers of over 15 staff. Casuals in small businesses – such as those disability support workers employed by start-up providers – can request conversion, but the employer can refuse on ‘reasonable grounds’. So, in many ways, nothing has changed.
If you are employing casuals though, we really recommend that you get across this media release and provide the Casual Employment Information Statement (CEIS) to your casual employees.