Chapter 6

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:

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:

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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