Chapter 6
Registration of Providers
6.1
This chapter highlights comments and concerns received by the committee
in relation to the registration of 'providers of supports' under the NDIS. The
criteria regulating the registration of providers are outlined in chapter 4,
part 3, clauses 69 – 73 of the bill. The committee was also supplied by the
department with draft Rules that form an important part of the framework for
provider registration.[1]
Registration
6.2
Clause 69 establishes the framework for a person or entity to become a
registered provider of supports and/or a manager of funding for supports.
Clause 70 outlines the process for the agency CEO to approve an application
made under the preceding clause. Clause 71 stipulates when a person or entity
ceases to be a registered provider, and clause 72 outlines the process for the
CEO to revoke the registration of a provider of supports. The bill is
complemented by the rules which provide further guidance on the functioning of
these clauses. Clause 73 sets out the scope for which rules may be made
governing registered providers.
6.3
Registration is only required for providers wishing to contract
directly with the agency.[2]
The department highlighted the rationale of having a cohort of registered
providers:
Provider registration is critical to enable:
- A listing of potential providers to inform participant decision
making, while noting providers can join this listing at any time;
- Payments to be systematically made where the plan or elements are
not self-managed;
-
Information on supports and related information such as
compliance with relevant regulations is known and maintained by the provider.[3]
6.4
The department informed the committee that registration requirements
balanced community expectations of risk management, oversight of public
expenditure, and ease of compliance:
To limit the Agency to using providers who are registered,
but to ensure that the process for registration is not onerous on providers. To
this end the Rules have been designed to limit the impost on providers while
enabling the Agency to collect information that the community would reasonably
expect should be able to be provided quickly and easily by any provider of
specialist disability support.[4]
6.5
The committee noted the concerns in Deaf Australia's submission, that
the potential complexity of the registration and compliance process may
discourage organisations and individuals from registering:
...the requirements to register as a provider and the
requirements with which providers must comply may be so onerous that they (a)
limit people with disabilities as to who they can choose as their support
providers and (b) make it too difficult for people with disabilities themselves
to be providers of supports.[5]
6.6
Evidence received from the agency CEO indicates that registration
requirements will not be overly burdensome considering the potentially large
volumes of public money being expended:
At its core, registration calls for the [Australian Business
Number] and the bank account details to enable payments to flow and providers
to be identified appropriately. Providers will also be asked to identify the
services they want to offer and what quality assurance and standards they
comply with, if any....This material will be important to inform participant and
Agency decision making.[6]
6.7
As the rules were not available to stakeholders when preparing
submissions or appearing at hearings throughout this inquiry, the committee did
not receive any specific comment regarding their content. On the face of it,
the draft rules provided to the committee relating to the registration of
providers strike a balance between assuring quality, and preventing unnecessary
red tape for prospective registrants.
6.8
The committee heard divergent views on the level of regulation that
should accompany (ongoing) registration. The committee heard that during this
process of deregulation of the disability services market it was important to
ensure that there are appropriate safeguards in place:
There is a fair bit in the legislation about the registration
of providers. As a provider that currently works in a very regulated market, we
see the implementation of the NDIS as totally deregulating, something that we
have never experienced before. We think that with a newly formed deregulated
market there will be an influx of other organisations. That is okay, but shiny
new toys often present themselves in ways with little validation beneath. We
feel that the quality control provisions and the assessment and validation
processes will be critically to ensuring that we are able to offer safe
alternatives to people with disabilities.[7]
6.9
Queenslanders with Disabilities also anticipated that the sector will
see the emergence of new providers offering niche, targeted services as
participants and their advocates seek the best services for their unique needs:
We are going to see a power shift where people with
disability and their families need to go to the service that meets their needs.
If I were projecting forward, I would see maybe some emergence of small niche
providers who really meet the needs of a niche market.[8]
6.10
The Victorian Equal Opportunity and Human Rights Commissioner (VEOHRC)
noted the importance of ensuring that adequate oversight mechanisms are in
place as new providers emerge to meet the growing market:
Ensuring adequate oversight is particularly important as the
market develops new forms and suppliers of services during that trial. This
will include new private and community service providers but could also include
arrangements where parents or carers engage themselves or family members to
provide supports...In developing the NDIS rules in relation to registered
providers, consideration must be given to appropriate processes for
registration and clarification of how oversight mechanisms would work in such
circumstances, including the interplay with existing state legislation.[9]
6.11
The committee was cautioned by the NPWDACC that the registration
requirements should not act as barriers to entry, rather than being genuinely
necessary for the particular risk.[10]
It was likewise noted by the National Councils of Social Services (NCOSS) that,
while registration is an important quality assurance mechanism, it should not
act as a barrier to entry:
While registration is an important mechanism to improve and
maintain appropriate quality in service provision and to develop a market for
such services it is possible that some organisations may not wish to register
but still provide support to individual people with disability. There is a
concern that the requirement to be registered where the Agency is the plan
manager may, in the initial stages, limit options thereby constraining choice
and control of the person with disability. It is unclear why this distinction
is necessary.[11]
6.12
The VEOHRC emphasized that for the NDIS to be as beneficial as possible
to participants it is important that 'persons and entities are assessed and
confirmed to be appropriately skilled to provide the service before they are
registered.'[12]
6.13
The evidence was generally consistent in calling for some registration
to ensure the quality of services provided and necessary safeguards for
consumers. It was the scope and mechanism of those protections that was the
subject of competing evidence.
6.14
The NPWDACC called for the criteria for registration and compliance to
be graduated according to participant-, service-related-, cost-related- and
market-related risk.[13]
Similarly, DANA and BCA argued that the degree of complexity of the
registration and compliance process should be commensurate with the level of
risk posed by the service to participants.[14]
As noted by Queenslanders with Disability Network: 'an inverse relationship
must exist between the capacity of the participant and the level of safeguards
required to protect them.'[15]
6.15
This approached was fleshed out more fully by the CEO of NDS:
There is no simple answer. But the appropriate approach to
registration of providers and qualifications is a risk based approach. We think
that there are several dimensions of risk that should influence that decision.
One is the characteristics of the participant. If we are thinking about a
participant who has cognitive impairment or an intellectual disability or who
is vulnerable in some other way, then the checks and the management of risk
should be greater and the registration of providers should be more onerous.
A second dimension is the type of service provided. If the
type of service provided involves intimate personal contact or intrusive bodily
contact, such as tube feeding, then there clearly need to be qualified people involved
and the risk is higher. But if the service is gardening then I would have
thought that the generic consumer regulations that apply to gardening would be
sufficient.
A third dimension is the cost. If the agency is to invest
heavily in, let us say, a piece of equipment such as an electric wheelchair
they may want to insist that some fairly rigorous standards apply to that
equipment, because there is a substantial public investment in it.
The fourth dimension to risk, in our view, is a chronological
one. It is recognising that at the outset the NDIS support market will be quite
new, both to participants and to providers, neither of whom are used to
operating within a market based system. We have lived for decades with a system
in which demand for services has greatly exceeded supply. Participants are not
used to making sophisticated purchases of disability supports. Not-for-profit
providers are not used to this sort of marketing of what they do. It may be
that at the outset the NDIS disability market is more highly regulated than it
might be in 10 years' time after there has been a maturing of the system, the
participants and the providers.[16]
6.16
The draft rules and evidence received from the CEO of the agency appear
to indicate that a risk-rated registration and compliance mechanism is going to
be utilised by the agency:
The NDIS Bill and Rules aim to achieve a balance between
effective choice and control for participants and management of risks for
vulnerable people. The Bill requires that the CEO be satisfied that a provider
meets the criteria prescribed by the Rules. The draft Rules set out the
following criteria for registration:
- An
ABN and account with a financial institution (to enable efficient payments by
the Agency)
- Agreement to the Agency’s terms of business
- Compliance with workplace and employment laws (if an
employer)
- Compliance with criminal laws
- Qualifications,
experience and capacity to provide supports for which they wish to be
registered
The level of qualification, experience and capacity will be
considered in relation to the type and level of risk associated with the
support to be provided.[17]
6.17
The committee heard that many service providers are already registered
under various programs and processes and that the NDIS registration should
attempt to avoid unwarranted duplication:
It is also important to recognise that many organisations who
may wish to become registered providers have already complied with various
standards and quality assurance processes that are relevant to the quality of
supports provided to people with disability. The registration process needs to
assess what standards and systems are already in place and their adequacy and
relevance to avoid unnecessary duplication.[18]
6.18
Similarly, ANGLICARE Sydney was keen to know whether state-based
verification processes for registering providers would be sufficient for
national accreditation or if 'alternative and duplicate processes will be
required of service providers – which is both costly and time consuming.'[19]
6.19
Going one step further, the Centre for Cerebral Palsy argued that
longstanding, existing providers of disability services should be automatically
registered by the agency, arguing:
Many disability service organisations have provided services
to people with disabilities/families with distinction over a long period of
time. Many have been categorised as 'preferred providers' by State/Territory
authorities. While acknowledging the need to ensure service quality and
financial security, the NDIS needs to acknowledge the role of these service
providers by giving them automatic registration.[20]
6.20
The agency allayed these concerns informing the committee that:
In accordance with the Bilateral Agreements, the existing
safeguards and quality assurance systems of host jurisdictions in the launch
sites will be utilised. These systems recognise the National Quality Framework
and the revised National Standards for Disability Services which are currently
being finalised.[21]
Plans managed by the Agency: the
impact of Clause 33(6)
6.21
The committee heard concerns about the restrictions that Clause 33(6)
may place on who can provide services. Clause 33(6) states:
To the extent that the funding for supports under a
participant's plan is managed by the Agency, the plan must provide that the
supports are to be provided only by a registered provider of supports.[22]
6.22
The effect of this clause is that participants who are having their plan
wholly managed by the agency will only be able to access services provided by
registered service providers, whereas other nominated fund holders will also be
able to purchase supports from elsewhere.[23]
As explained by the CEO of the agency: 'When a person is self-managing their
plan and directly purchasing supports, they have the freedom to purchase
supports from any provider.'[24]
6.23
Providers of supports who wish to be contracted by the agency will be
required to be registered in accordance with clause 69. Providers who do not
wish to be contracted by the agency, but intend to provide services to
self-managing individuals are not required to become registered providers.
6.24
The committee heard concerns that participants impacted by clause 33(6)
may be disadvantaged vis-à-vis participants whose plans are not managed by the
agency:
We are very concerned that if the agency manages a person's
plan then the agency will only purchase from registered providers of supports.
If a participant has a plan manager that is not the agency then that
participant can purchase from anyone but if the agency is your plan manager
they can only purchase supports from a registered provider of supports thereby
limiting who they would purchase supports from. We know that lots of people
will go to the agency for their eligibility and then stay with them for lots of
other roles. We think that could be (1) discriminatory and (2) at the very
least limit the options of the people who choose the agency for plans. It is
not in the interests of people with disability and is a very poor choice of
roles for the agency.[25]
6.25
UnitingCare Australia argued similarly:
Creates a potential disadvantage in both choice and price for
those having their funding managed by the Agency. UnitingCare Australia is
concerned that this requirement may be of particular relevance to those people
with a disability who may have limited informal supports and/or advocates to
assist them. This could include vulnerable cohorts who experience additional
advantage due to factors such as homelessness, mental illness, drug and alcohol
use and or ageing with a disability, further compounding their existing
disadvantage.[26]
6.26
The New South Wales Disability Network Forum (NSWDNF) conclude that the
impact of this clause would not only be to reduce choice, but to limit personal
development of the participant:
For participants who use the Agency as their plan manager and
fund manager, this will in effect reduce their choice and control, their
opportunities for innovation and possible personal development of the
participant. The Forum sees no valid reason why participants using the Agency
should have restricted access to purchasing arrangements as compared to any
other participants using funding under the NDIS.[27]
6.27
Going some way to address these concerns, the agency informed the
committee that:
Should the participant want a provider not currently
registered, this is also easily addressed with the provider joining the
registration listing, noting that the listing can limit that provider to only
being available for that participant.[28]
6.28
Assuming that most organisations providing services to people with
disabilities will register, and the ability of a participant to request a
specific provider, the choice available to people who are having their plans
managed by the agency should not be significantly impinged.
6.29
Currently the registration requirements of subclause 33(6) apply only to
providers being contracted directly by the agency. NDS proposed that the
requirements to use registered providers be extended beyond the plans managed
by the agency based on a risk-rated model:
Not all services which can be purchased under the NDIS should
be provided by a registered provider of supports. Services such as gardening or
cleaning could, for many people, be purchased from generic gardening or
cleaning companies. However, support that is person or requires disability
support skills (such as personal care, community participation, behavioural
support and early intervention therapies) should only be sourced from
registered providers. This should be so wither the plan manager is the NDIS
Agency or a non-government 'plan manage provider'.
Section 33(6) should specify that when a plan is managed by
the Agency or by a plan management provider, certain classes of supports
will require a registered provider (the NDIS Rules will contain the criteria
for determining classes of supports). This would ensure the Agency or plan
management provider uses only registered providers for disability support while
allowing generic services to be sourced more broadly.[29]
6.30
The majority of the evidence received by the committee did not support
additional registration requirements being imposed in excess of those already
in the bill. The committee heard that:
There is a great risk of suffocating the intent of having
people having choice and control by overregulating what could be a wide range
of potential suppliers of services and support.[30]
6.31
This tension between managing systemic risk and personal was discussed
in Chapter 2 of this report.
Committee View
6.32
The committee understands that clause 33(6) only applies to funds
managed by the agency. As indicated by the selection of evidence above, the
committee heard from a large number of organisations and individuals who were
concerned regarding the impact of this clause on the provision of services for
people having their funds managed by the agency. The committee was persuaded by
the evidence – cited earlier in this chapter – from the agency and the department
regarding the necessity of proper oversight of public money, and also the
ability for participants to nominate their own registered provider. While the
committee considers it prudent that the impact of clause 33(6) be explained to
prevent any confusion on the part of participants and prospective service
providers, the committee considers that subclause 33(6) should remain in its
current form.
6.33
In relation to the suggestion from NDS that providers of certain classes
of supports should be registered, the committee anticipates that market forces
will act to encourage most prospective providers to register. Although plans
not managed by the agency can source services from any provider – registered or
not –, registration will confirm to a prospective customer that the provider
abides by the NDIS Rules and other laws, and has measures in place to deal with
complaints and prospective conflicts of interest. The register will also act as
a convenient catalogue from which services can be located. As a result, the
committee does not believe that there is need for further amendments in
relation to the registration of providers at this time.
Conflict of interest
6.34
A number of stakeholders expressed concerns regarding the proposed
legislation allowing a manager of the funding for supports to also provide planned
supports, thus creating a conflict of interest.[31]
For example, Disability Justice Advocacy called for the two roles to be kept
entirely separate:
[Disability Justice Advocacy] believes there is great
potential for both actual and perceived conflicts of interests where a plan
management provider for supports is able to manage funding for supports. It is
recommended that these roles be kept entirely separate.[32]
6.35
It was contended by NSWDNF that:
The [NSWDNF] contends that it is a conflict of interest for a
provider of supports (service provider) to be also managing the funding for
supports, and not only for the one participant. There are concerns that this
could serve to restrict the options of the participant to only those supports
that the service provider can offer. The Forum contends that a provider of
supports must remain separate from a fund manager.[33]
6.36
Brain Injury Australia (BIA) provided another reason for keeping plan
management providers and providers of supports separate:
[disability service providers] are not likely to be the best
or most appropriate entities to manage the funding of participants — due to (a)
conflict of interest issues, and (b) the need to ensure that the system does
not revert to a [disability service providers]-centred model (i.e.
'block-funding' by another name/method). Keeping the terms distinct will help
to ensure that there is no presumption in the NDIS that [disability service
providers] will (or should) become [plan management providers].[34]
6.37
It was suggested that plan management and provision residing in the same
entity may not result in the best outcomes for participants:
If service providers undertake that planning for an
individual then we will be losing some of the safeguards that we could have.
Some of the conflicts that would come when the service provider was involved in
planning would be, for example, a tendency to nominate their own services as
best-fit for the purpose. They would be much less able to look at the
effectiveness of the plan when it has actually been implemented.[35]
6.38
Deaf Australia raised the spectre that allowing plan management
providers and providers of supports to undertake both functions concurrently
would mean that, for the participants, little would change under the NDIS
compared to the prevailing system. They stated:
Allowing providers of supports to also provide planning and
fund management mean that for many people with disabilities nothing much will
change, they will still be going to the same organisation for all their needs,
as they do now. This will not lead to increasing independence, choice and
control for people with disabilities. It will also not provide incentives for
service providers to reimagine their services and develop new types of services
to meet new needs, or for new support providers to emerge in a more mature
market.[36]
6.39
Similarly, Children with Disabilities Australia argued that allowing
registered providers to simultaneously act as plan managers and providers of
supports:
...waters down the ambition of the sector reforms that the NDIS
has signalled. Participants must be offered a range of options for the
management of their plan so as not to limit choice, however their service
provider should not be available as a choice in this area.[37]
6.40
DANA similarly noted that the potential for conflicts between the best
interests of the registered service provider and the participant was the reason
that the Productivity Commission did not support single entities being vested
with plan management and service provision roles, and on this ground that DANA
has called for the legislation to be amended.[38]
6.41
It was recognised that by Deaf Australia that in regional and remote
contexts it may not always be feasible to have separate plan management and
service providers. In such cases it was recommended that the agency could
undertake the role of plan management provider.[39]
6.42
NDS expressed support for the current structure of clause 70 arguing:
Participants should be able to choose their plan management
providers as well as their support providers. As long as there are plan
management providers that are independent of support providers available as an
option, and that plan management providers are required to disclose all
relevant interests including financial interests (in a manner similar to
financial advisors), NDS believes a participant should be free to choose a
support provider to manage their plan. In some cases, the registered disability
service provider will be the entity that the participant trusts, has a
relationship with, and believes best understands their goals.[40]
6.43
The Centre for Cerebral Palsy also noted that the differentiation of a
manager of the funding for supports from support providers goes against the
current trend where many support providers also manage funds.[41]
6.44
The CEO of NDS did not dismiss the concerns of potential conflicts of
interest arising, but argued that they were manageable in the same way as
potential conflicts of interest in other domains are managed:
I understand the contrary argument that it is related to
potential conflict of interest if a support provider is also a plan management
provider, but in our view that conflict can be managed, and to prohibit any
cases where a support provider was also a plan management provider would deny
participants choices that they may want to make...As long as that plan
management provider declares any conflict of interest—just as that is a
requirement for financial advisers generally—and that there are available
independent providers that they can choose from, that would seem to us adequate
protection. An additional protection might be that the agency itself could
audit referral patterns—just as government does with GPs—so that if it were the
case that all the business of a participant were directed from a plan
management provider to a single support provider, at least the question could
be raised.[42]
6.45
The committee was informed that potential conflicts of interest are
addressed in the draft rules. The committee learnt that:
When the provider seeks to be registered to provide supports
and manage funds on behalf of a participant, they also need to demonstrate they
have mechanisms in place for dealing with the (perceived) conflict of interest.[43]
Committee View
6.46
Given the level of concern raised with the committee, that conflict of
interest between those managing funds for supports and those providing services
needs to be avoided, the committee is of the view that provision for a
mechanism to prevent this conflict is best made explicit in the primary
legislation rather than facilitated through the rules. The committee is not
intending that the mechanism itself be stated in the bill, but that the bill
should indicate that a mechanism needs to be in place. The detail can then be
addressed through rules.
Recommendation 20
6.47
The committee recommends that provision be made in the bill for a
mechanism to ensure that service providers must have a system in place to
manage potential conflict of interest, and the performance of that mechanism
should be examined during the review of the Act in 2015.
Complaints regarding registered
providers
6.48
The committee heard many calls for the establishment of effective and
accessible complaints mechanisms.
6.49
Youth Disability Advocacy Service (YDAS) recommended the establishment
of an independent complaints handling body that can respond to complaints about
services providers.[44]
It was argued that:
This body would be responsible for making service providers
accountable to the National Disability Standards. It would also support the
resolution of disputes between service users and service providers.[45]
6.50
This view was also put to the committee by the VEOHRC who recommended
that:
A complaints system for participants to bring complaints
against registered providers and the Agency must be established as a matter of
priority. For such a system to be meaningful and effective there must also be
appropriate resourcing of individual and systemic advocacy.[46]
6.51
It was noted by the ACTHRC that the proposed complaints mechanism in the
bill was limited to registered providers.[47]
Many participants will access services from individuals and companies that are
not registered providers, and it was argued by the ACTHRC that:
While it may not be appropriate to apply all the same
criteria that will apply to registered providers, people with disabilities who
experience problems with service provision should, as a minimum, be entitled to
access an independent and impartial complaints authority to seek assistance in
resolving those concerns.[48]
6.52
The committee is pleased to note that many of the concerns raised by
stakeholders during the course of this inquiry appear to have been addressed in
the recently released draft rules.
6.53
The committee was informed by the department that in the beginning, the
NDIS will use the existing complaints infrastructure in the states and territories
in relation to complaints regarding registered providers:
In the states and territories there are quality assurance
processes and review bodies, effectively, that enable complaints to be dealt
with in relation to service providers. In the first instance, the agency will
pick up and use those processes. As the disability commissioners would make
clear, these are quite complex and run from a series of fairly routine
complaints—what has happened; quality assurance—but they also reach back to
things like restrictive practices. Unpicking that for limited sites quickly is
risky, so we have decided to build on the existing organisations, pick them up
and use them and make sure the agency can interact with them.
It is those processes where complaints about the behaviour of
a service provider get dealt with, and there are established processes to do
that. So we will use those in launch sites.[49]
6.54
Under the draft rules provided to the committee, a registered provider
must inform the agency that a complaint has been made, and the registered
provider must notify the agency of the action that the provider takes in
relation to the complaint.[50]
6.55
In response to a complaint, the CEO of the agency has the power under
the rules to revoke the registration of a registered provider:
The provider is the subject of a complaint to a responsible
authority about the standard, effectiveness or safety of the provider's
provision of supports or management of the funding for supports, regardless of
whether those supports are provided or funded under the Act.[51]
6.56
The department also emphasized to the committee that under the new
scheme participants will be able to move service providers if they are unhappy
with the service they are receiving. As was explained to the committee:
[The] other dimension of the new scheme here is that, if the
individuals are unhappy with that support provider, they can move because their
funding is individualised. Once a scheme is working, it is not a grant system
which is paid to the provider as a lump sum in respect of the capacity; the
individual has their own money which then goes to the provider that they
choose. So, if they are unhappy with that provider and there are alternative
providers, just like any consumer they can take their money elsewhere, to
another provider.[52]
Committee view
6.57
The committee has carefully noted the concerns cited during the course
of the inquiry regarding the lack of the inclusion of a complaints mechanism in
the bill.
6.58
The committee notes that the need for formalised complaints mechanisms
for registered providers should not be less under the NDIS than under older
disability support schemes. Participants, like other members of the community,
will be free to use the services they wish and will vote with their feet if they
are receiving poor service. For many people, the cost of dealing with the
complexity and stress of resolving a complaint will not outweigh the benefit of
moving to an alternative provider who is able to meet the expectation of the
participant.
6.59
Nevertheless, changing providers can present challenges, and choice is
not always available, particularly in regional and remote areas, or for highly
specialised services or equipment. For these reasons, it is vital that there is
a formal complaints process recognised in the bill, and that there is a defined
pathway by which complaints can have the capacity to affect a service provider
registration, if the provider fails to respond adequately to those complaints.
6.60
The draft rules and evidence provided by the department and the agency have
satisfied the committee that for the purposes of the launch sites the
complaints provisions in place regarding registered providers are sufficient to
protect the interests of participants and the integrity of the scheme.
Workforce Issues
6.61
Various organisations discussed the impact the NDIS will have on the
disability sector workforce. Potential issues raised included the risk of
increased casualisation of the workforce due to reductions in block funding and
the need for increased flexibility. The prospect of shortages of appropriately
skilled staff, and the need for training across the sector, were also discussed
by some stakeholders.
6.62
The Queensland Alliance for Mental Health Incorporated spoke of how
service providers faced a challenge in restructuring the workforce to respond
to the changing nature of service delivery that NDIS will bring:
People have spoken to us about how managing in this new
environment will have an effect on workforce and workforce planning, how it
will have an effect on how they manage their staff and the sorts of management
skills they will need to bring in, the sorts of structures their organisations
will need to be mindful of as they design perhaps a way to pitch the services
they provide to people, the way they promote their services and the sort of
money that might be needed to change their organisation to manage this
effectively.[53]
6.63
Cootharinga North Queensland also discussed the impact of the NDIS on
workforce planning and the problems that attracting and retaining appropriately
skilled staff, particularly in rural and regional areas:
We welcome the dramatic increase of funding that is expected,
but we also anticipate that there are going to be some significant issues for
developing an appropriately skilled workforce. We are concerned too about a
potential for a move to casual employment in the sector. With individual
choices it is going to become more of a challenge to offer ongoing, secure
full-time work, and the prevalence of part-time work is expected to increase.
There are going to be challenges for organisations like ours to retain and
develop staff in an environment which may see an increase in casual employment.
The challenges of developing an enhanced workforce are certainly bigger in
regional and rural areas and certainly in those areas that are affected by
other employment opportunities such as mining.[54]
6.64
The Health Services Union (HSU) referred to the emphasis the
Productivity Commission had put on the provision of a sufficiently trained and
skilled workforce to ensure the sustainability of an NDIS:
[T]he Productivity Commission clearly identified that
workforce was a key issue in terms of quality outcomes and sustainability of
the NDIS and that, without resolving this issues, it will be difficult to
promote consumer choice, consumer control and facilitate the introduction of
the NDIS. The Productivity Commission also clearly identified that a highly
skilled workforce is required to provide high-quality daily supports to
individuals with complex needs.[55]
6.65
HSU was also strongly of the view that the true costs of the service
delivery should be included in an individual's package, to ensure that service
providers could meet the fixed costs associated with providing their
services:
We are concerned to ensure that the structure of funding
arrangements built in and around individualisation also includes balanced and
complementary funding to service providers to support the real cost of service
delivery, including the range of capital, fixed, training, compliance, quality
and other collective operational costs that go to providing training and to
ensure that those service providers are able to secure and support the ongoing
professional development of a quality workforce. Funding streams need to be
built into the system that deal with sustainable service provision effectively.[56]
6.66
United Voice noted that the bill has the potential to create a
fragmented workforce that will ultimately lead to a drop in the quality of
service provisions:
[T]here are three key issues that we see will cause
fragmentation in the sector. One of those is the capacity for a person with a
disability to enter into a direct employment relationship. There are also
issues around a person with a disability and/or their carer employing family
members at a reduced wage rate. We also have concerns around the 'funding
follows client' model without a clearly articulated workforce strategy in
place. The way that this can impact on the disability services workforce is by
things like limiting career progression and opportunities and limiting salary
progression through the opportunity to move up classification levels based on
skills and experience. We are also concerned around some attitudes—the attitude
that is represented by not having a workforce strategy with respect to
improving staff qualifications and standards.[57]
6.67
United Voice thought that the advisory council should oversee workforce
matters in the sector with a view to increasing the capacity, skills and
quality of the staff working in the sector:
The key recommendations in the United Voice's submission is
that the composition of the independent advisory council include trade union
representation—those unions with relevant coverage of the disability workforce;
that the NDIS bill recognises that the disability services workforce is a key
part of the implementation of the NDIS; and that the bill needs to explicitly
provide funding and other mechanisms to solve the current and future workforce
issues.[58]
6.68
The department referred the committee to the measures already in place
through the launch of the NDIS, but also through the continuing work done by
the states and territories in trying to attract people into the sector:
There is some funding associated with the launch that is
about workforce and sector development, but the ongoing upgrading of skills and
the maintenance of skills in the human services workforce is an ongoing issue.
The funding provided for support for individuals should include that as an
overhead, but it is a broader issue across the community services workforce
that is present. To some extent, there has already been quite a lot of effort
in some states and territories put into attracting, retaining and developing
skills and a workforce in this area—for example, work that New South Wales has
done in what is called Care Careers, and the agency intends to piggyback on
that.[59]
6.69
The agency also committed to addressing any gaps in the provision of
appropriately skilled staff as the scheme is rolled out over the trial sites.
Attracting people and the provision of specialist skill
programs would be something that we would look at out of the workforce and
sector development fund, where there may be gaps in the current qualifications
and skills of people—say, for people with complex behavioural needs or those who
need particular elements of nursing care associated with their physical
disability. We will look at that stuff and address it if there is a gap in the
market.[60]
6.70 Finally, the department also pointed out that a range
of existing compliance requirements for employers would be in place for anyone
employed in the sector:
Dr Hartland: If it is a requirement of the law—and this does
not replace the law in relation to the Fair Work Act or other aspects of the
law—we are asking providers to declare that they meet the law and they will
have to meet the law by the operation of those statutes.
CHAIR: So it is your plan that goes to the agency using
registered providers and there would be an expectation that award rates would
be paid for care work, as it is now known. But if someone is self-managing, is
there any requirement for them to actually follow award rates in payment for—
Dr Hartland: Yes, because the law is clear on this.
...
Ms Wilson: If you look at the requirements for registered
providers and at the revocation, part 4 and part 5, it makes pretty clear that
compliance with that area of law is important.
Senator SIEWERT: That is clear, and then if they are
individually managing their own package and individually contracting people—
Ms Wilson: If a person is in an employee relationship with
someone, they would have to meet all the requirements of an employer and there
will be, as there are in the states and territories, resources developed to
give them a checklist of what that involves, so there would be an expectation
that, if they are going to formally employ someone, they meet all those
requirements—tax, super, OH&S et cetera.[61]
Committee View
6.71 The committee views the implications for the
disability sector workforce as one of the key issues in the implementation of
the NDIS. Insufficient protection for workers in the industry will ultimately
erode the quality of services provided to the participants of the scheme. The
need for a highly skilled, trained and motivated workforce is paramount to the
success of the NDIS and representatives of workers should be valued partners in
its delivery.
Recommendation 21
6.72 The committee recommends that the Commonwealth
continues to work with the States, Territories and relevant workforce
organisations in the disability sector to ensure that implementation of the
NDIS does not lead to more insecure working conditions in the sector, and that
measures are put in place to enhance the skills, training and capacity of the
disability workforce.
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