Public hearing 32 - Service providers revisited - Day 2

CHAIR: Good morning everybody and welcome to the second day of Public hearing 32, the subject of which is Service Providers Revisited. We commence as always with an Acknowledgment of Country. We acknowledge the Jagera people and the Turrbal people as the Traditional Custodians of Meanjin, that is, Brisbane, which is the land upon which we are gathered for this hearing. We pay our respects to their Elders past, present and emerging. We also wish to acknowledge any First Nations people who are participating in this hearing, and we also acknowledge those who are following the hearing either in person or via the livestream. Yes, Ms Eastman. 

MS EASTMAN: Chair, just before I start, I think there is two appearances that Counsel wish to – 

CHAIR: Yes. Thank you. Are there some appearances to announce? Yes. 

MR DUGGAN: Yes. Commissioners, my name is Duggan. I appear for Sunnyfield. 

CHAIR: Thank you very much. 

MS EVANS: Thank you, Commissioner. My name is Ms Evans, and I appear for the Victorian Disability Worker Commissioner. 

CHAIR: Thank you, Ms Evans. Thank you very much. Yes, Ms Eastman. 

MS EASTMAN: Thank you. Good morning, Chair, Commissioners and to everybody following the proceedings. Our first witness this morning is Zelda Riddell. She's here with us in the hearing room. For those following the proceedings who are not in the hearing room, you will only see me as Ms Riddell gives her evidence. And so, Commissioners, I would like to introduce Ms Riddell, and I think she is going to take an affirmation. 

CHAIR: Ms Riddell, thank you very much for coming to the Royal Commission in Brisbane to give your evidence today. We very much appreciate your assistance to the Royal Commission, and we appreciate the statement that you have already provided. If you would be good enough to follow the instructions of my associate, who is sitting just opposite you, she will administer the affirmation to you. Thank you very much. 

<ZELDA RIDDELL, AFFIRMED 

CHAIR: Thank you, Ms Riddell. I will now ask Ms Eastman to ask you some questions. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: So, Ms Riddell, you have prepared a statement for the Royal Commission dated 25 January this year, and you've got a copy with you? 

MS RIDDELL: Yes. 

MS EASTMAN: I might need you to speak up. 

MS RIDDELL: Yes. 

MS EASTMAN: And there is nothing in this statement that you want to change or and amend, is there? 

MS RIDDELL: No. 

MS EASTMAN: And what you've said in the statement is true? 

MS RIDDELL: Yes. 

MS EASTMAN: So the Commissioners have got a copy of your statement. And, Commissioners, at the end of Ms Riddell's evidence, I will tender the statement. I want to ask you some questions about your work as a support worker and your work in the disability sector. So can I start with asking some questions to introduce you. So you are in your early 30s? 

MS RIDDELL: Yes.

MS EASTMAN: A little higher up. 

MS RIDDELL: Sorry. Yes. 32, nearly.

MS EASTMAN: And you work as a disability support worker, but also you use another title called disability development and support officer. Is there any distinction between those terms? 

MS RIDDELL: Yes. When I was recruited to work for the Department of Human Services when I was 21, we were recruited as disability development and support officers, and we were public servants. I do make the distinction because I think the designation of "officer" puts more responsibility on us to work for society, not just for individuals. And I also am a disability support worker for a person who runs his own support service, who is an individual, and I think there is a real distinction in how I perform my duties between those two roles. 

MS EASTMAN: So when we have our conversation today about the nature of your work, is it okay if sometimes I refer to "support workers" and that's intended to pick up everybody? 

MS RIDDELL: Absolutely. And my statement only covers work that I've done as a disability development and support officer, but I also recognise I'm a disability support worker more broadly.

MS EASTMAN: So after you finished high school, you completed a Bachelor of Arts in Journalism and Indigenous Studies at Monash University. Is that right? 

MS RIDDELL: Correct. 

MS EASTMAN: And you were working in hospitality for the first period of your career. So that coincided with finishing university and starting to think about where you wanted to work long term. Is that right? 

MS RIDDELL: Yes. I could have been a journalist, but I decided I wouldn't enjoy it. 

MS EASTMAN: And so after you had been kicking around in hospitality for a while, someone suggested that you might be interested in working in support for people with disability, and that led you in to your first job with the Victorian Department of Human Services. 

MS RIDDELL: That's right. 

MS EASTMAN: So that's that DDSO role. 

MS RIDDELL: Yes. 

MS EASTMAN: Okay. And when you applied for that job, did you have to have any qualifications? 

MS RIDDELL: No, I didn't have a qualification when I started, but they were specifically interested in the idea that I understood about self determination and human rights from my background and that I could cook and clean. 

MS EASTMAN: So you didn't need to have done any particular course at university or TAFE to get the job. 

MS RIDDELL: No. 

MS EASTMAN: And when you started in that first role, you were employed on a level 1 unqualified, according to the Disability Services Enterprise Agreement that existed at the time. 

MS RIDDELL: Yes. 

MS EASTMAN: And did the enterprise agreement set out the terms and conditions of your employment? 

MS RIDDELL: Yes. 

MS EASTMAN: Do you remember that? And also tell you what the rates of pay would be for the work that you would do? 

MS RIDDELL: Yes. 

MS EASTMAN: And the agreement also set out what your leave entitlements would be, but they were a little bit different because you were a casual. So you didn't come on initially, did you, as a full time worker? 

MS RIDDELL: No. And to pick up a permanent position, there was a requirement that you would undertake or have already completed a qualification, which was a – is a Cert IV. 

MS EASTMAN: So for the first two years that you were working as a casual in support work, were you working around about 20 hours a week? 

MS RIDDELL: Yes, I – yes, I would say that's probably pretty accurate. 

MS EASTMAN: Now, you are also a person who has told us in your statement that you live with disability. 

MS RIDDELL: Yes. 

MS EASTMAN: And you are autistic, and you've had a diagnosis of ADHD. Is that right? 

MS RIDDELL: Yes. 

MS EASTMAN: And that's a diagnosis which has come in fairly recent times. 

MS RIDDELL: Yes. 

MS EASTMAN: And when you think about you and your personality, you've been – always been a person who has been introspective and analytical. You have got a lot of insight and reflection. 

MS RIDDELL: I think you have to be as an autistic person. I didn't know I was autistic until quite recently, but it makes a lot of sense, the feeling of otherness and feeling that you need to be alert to the way that people behave around you because you don't have that intuitive sense of what people mean. 

MS EASTMAN: And the work that you've done in supporting people with disability has caused you to think quite a lot about the nature of that work, how you work and also allowed you to really observe what's going on around you. Is that right? 

MS RIDDELL: Yes. Correct. 

MS EASTMAN: Would it be fair to say that in terms of coming and sharing your story with the Royal Commission, that's very much informed by what you've observed over the many years that you have now worked in the disability sector? 

MS RIDDELL: Yes. And also I'm studying at Deakin disability and inclusion, and that added lens of the most contemporary and evidence based knowledge that we have about, you know, how we apply disability rights and how we practice person centred care. It's really helped me reframe a lot of the experience I have had and understand what has really bothered me about the industry previously, in a way that I didn't have the words to explain before. 

MS EASTMAN: All right. So I want to come back to when you first started. You were a casual, 20 hours a week and you were working for the department. Then, over time, things have changed, both in terms of who you work for and the nature of your work. So can we just walk through how your career has developed. So I think as you said, to be able to move from a casual role into something more permanent, be it permanent part time or full time, the first step is that you had to have a new qualification. Is that right? 

MS RIDDELL: Correct. 

MS EASTMAN: And what did that involve? 

MS RIDDELL: It was, I think, a 12 to 16 month part time certificate that I did at a RTO. 

MS EASTMAN: And did that involve doing any particular practical work outside your employer? Did you have to go and do practical work to demonstrate your skills? 

MS RIDDELL: I actually was able to demonstrate my skills with my employer. So I didn't have to get a secondary placement. 

MS EASTMAN: And when do you remember obtaining that qualification that enabled you to move to permanent part time work? How many years did it take to get there? 

MS RIDDELL: I would have started around the time I got married, which I think was 2015. 

MS EASTMAN: It is Valentine's Day. You better remember that date today. 

MS RIDDELL: Our anniversary was only a week ago. 

MS EASTMAN: Okay. All right. So is it right to sort of say it was sort of almost about a three or four year period in the lead up – 

MS RIDDELL: Yes, maybe – 

MS EASTMAN: – to get the qualifications. 

MS RIDDELL: – three. Yes, to decide to do it and then to complete it. 

MS EASTMAN: And during that first period of time – so I just want to focus on the period leading up to when you had to take on the further qualifications. As a casual working 20 hours a week, what type of work were you doing and where did you work? 

MS RIDDELL: I worked in what they then called the Western Metro area. I worked at a lot of different houses. 

MS EASTMAN: When you say "houses" – let me interrupt – group homes? 

MS RIDDELL: Yes, group homes. Yes. If I had to guess, I would probably say I worked at about 20 different houses, but not regularly. There were about three houses I worked at as a preferred casual, which meant that they would call me before they called. They would call me as a group of preferred casuals before they called other casuals. The kind of work I did in those environments tended to be on the less experienced, less skilled side. So I would do more laundry, cleaning, I guess what you would – I would describe as just hanging out with people, and I wouldn't be responsible for the more intricate stuff like health appointments, doing reports and planning and stuff. 

MS EASTMAN: In that early period, did you have any on the job training – so separate from the certificate, but on the job training? 

MS RIDDELL: Yes, I would say not – well, part of the induction was that you had to undergo some training at the houses. But until you were inducted, you weren't really considered a DDSO at all. So once I had completed the induction, which was quite intensive, from there all rest of my training was informal. 

MS EASTMAN: And as a casual, were there opportunities of increasing your responsibilities in houses? 

MS RIDDELL: Really the only way that you could do that would be to pick up short term contracts, and in that contract usually you would be given the responsibilities of the person who was away for that period. So if that persons was a key worker for a resident, you would become their key worker for that month and take over their responsibilities, which is how you – the best way to upskill when you are working is to take over someone's responsibilities so you have, like, examples of the kind of work you are supposed to produce from what they produced before. 

MS EASTMAN: And in terms of undertaking what you have described in the statement as direct support work, did you have to do some additional training in understanding the history of institutions, deinstitutionalisation, supporting people with complex disabilities and behaviours, as well as manual handling, medication, administration and then using disability equipment like slings and hoists? Did you have to do that? 

MS RIDDELL: That was all part of the induction process, yes. 

MS EASTMAN: And in terms of learning those skills, which are sort of quite varied, in understanding historical models, learning to support people with complex disability, as well as some manual handling, was there any particular emphasis on what was the most important thing for you to be skilled at? 

MS RIDDELL: Not really. I guess there has always been a focus – when you start as a casual, you get told money and medication is the most important thing, that you really can't – 

MS EASTMAN: Sorry, say that again? 

MS RIDDELL: I do talk fast, I'm sorry. 

MS EASTMAN: Yes. That's okay.

MS RIDDELL: Money and medication are the two things that you can't mess up. 

MS EASTMAN: Money and medication. What do you mean by "money"? 

MS RIDDELL: We do handling of people's petty cash, and we kept and still keep cash records of – logs of what cash people have at the house. And they are checked in the morning, checked at night, to make sure no money is missing and it is all accounted for. And that's, like, really important. As well as medication, obviously, having a record of what medication you gave and if you give (unknown term) 

MS EASTMAN: In terms of administering any medication, did you work to any health professionals to give you guidance on how you should do that or what you should do or to understand what the nature of the medication might be? 

MS RIDDELL: We have medication training, and for every medication that residents are provided, you have the – I'm sorry, I don't remember the name of it. It's like the printout that the manufacturer provides to describe the side effects, what it's commonly treated for. We also have a medication treatment sheet that will say – sorry, I use my hands when I talk – that will say when the medication was prescribed, by whom and then on an overleaf it will say when it was prescribed for, what it was prescribed for, when it was intended to be given, what the potential side effects are. So you have all that to hand. But you, as a casual, would almost never interact with people's medical professionals directly unless there was an emergency. 

MS EASTMAN: All right. So after taking on this work for a few years, you got to a point where you were feeling a little bit burnt out and overwhelmed. Is that right? 

MS RIDDELL: Regularly. 

MS EASTMAN: And you went on a secondment to work with one of the unions? 

MS RIDDELL: That was after I had commenced my permanent position, after I got married, yes. 

MS EASTMAN: And that just gave you a little bit of time out to recover and to really reflect on whether or not you wanted to continue working in the support work area. Is that right? 

MS RIDDELL: Yes. And I was really happy to go back, actually. At the time, I couldn't work in an office due to ADHD. 

MS EASTMAN: So you got to the point of, like, working in an office might seem a good idea, but actually what you liked doing was to be working with people and supporting people. Is that right? 

MS RIDDELL: Yes, that's right. 

MS EASTMAN: So as we just move your career forward, you started employment with Home At Scope in 2019. And did you make a decision to work with Home At Scope? 

MS RIDDELL: No, we were – the Victorian Government had owned and operated a number of Supported Independent Living facilities. And when the NDIS was introduced, they proposed to tender out those houses to be managed by other services, and Home At Scope succeeded in getting the tender for most of the Western Metro. So I was transitioned as well as the house. 

MS EASTMAN: Okay. So it wasn't sort of finishing off with the department and going to something entirely new. 

MS RIDDELL: No, although it looks like that on my resume. 

MS EASTMAN: But a new service provider came in. So you have worked at four houses – is that right – since working with Home At Scope? I'm just looking at paragraph 16. 

MS RIDDELL: Four – yes, four would be – that I was contracted to as a permanent, yes, but more if you counted casual work. 

MS EASTMAN: And over the time that you have worked, is it fair to say your skills have increased – 

MS RIDDELL: Absolutely. 

MS EASTMAN: – from on the job work? 

MS RIDDELL: Yes. 

MS EASTMAN: You have got the additional qualifications, and do you now have a certificate? 

MS RIDDELL: I do have a Certificate IV, yes. 

MS EASTMAN: Right. A Certificate IV. 

MS RIDDELL: Yes.

MS EASTMAN: And you have also had the opportunity to work up a level, so you have been a house supervisor. 

MS RIDDELL: And a 2A briefly. 

MS EASTMAN: And what do those roles – when you are working up in higher duties, what have they involved? 

MS RIDDELL: I guess you are working in both directions. So you are providing support to the staff who you supervise, but you are also providing the sort of compliance documents that the management level above you requires, as well as liaising with family and support coordinators to a greater degree. You are ultimately responsible for the work that the staff, like, produce at the house. So you have to make sure that everybody is working at a good standard and also that they are happy at work, and they are not stressed. 

MS EASTMAN: Do you have to have any special training to take on these acting up roles as supervisors – as a supervisor? 

MS RIDDELL: It would be – it is part of the EBA to work as a 2A or a 3A, which is a DDSO level 2 advanced or a DDSO level 3 advanced. 

MS EASTMAN: Okay. Just pausing there so everybody else can follow us. 

MS RIDDELL: Yes.

MS EASTMAN: The EBA is an enterprise agreement? 

MS RIDDELL: Yes. 

MS EASTMAN: And the enterprise agreement sets out the different levels for people to be employed in. And what you have to do with each level might be described by something called a classification, and that might set up the types of duties or responsibilities or qualifications you need to be clicked in at that level. Is that – I'm trying to put that in a simple way but not oversimplified. 

MS RIDDELL: Yes. Yes. So to do either of those roles, which are – like, the three level is supervisory. To do that role, you need to have a Cert VI. I had a Cert VII, which was a Graduate Certificate of Disability and Inclusion that I got from Deakin. So they considered that equivalent or higher so that I could do the 2A role. The other times that I supervised, I didn't have that graduate certificate, but they were short term contracts where I think they really needed someone who could step in. And so I was – I couldn't have got that position permanently, but I was sent in into help at that time. 

MS EASTMAN: Have you turned your mind to taking on a supervisor or an operations manager type role in the work that you do? 

MS RIDDELL: Certainly being a house supervisor is a really cool job. I don't really like working full time, and I would never be operations manager, I don't think. It's so much work. Those guys work so hard. 

MS EASTMAN: So for you, working permanent part time suits you the best. Is that right? 

MS RIDDELL: Yes. 

MS EASTMAN: And so the option of working full time has arisen, but you have decided permanent part time is what your preference might be. 

MS RIDDELL: Yes. I had the chance – after being a 2A for eight months, I could have been EVE'd into the role, which is an acronym. I don't know what it stands for off the top of my head. But I chose to go back to working part time, because working full time doesn't leave you with a lot of time. Especially as a shift worker, you are doing, like, 13 hour shifts. You might do one week where you work 50 hours. It's pretty hard. 

MS EASTMAN: And are some of the shifts that you do overnight or what's called in the industry the sleep over shifts? 

MS RIDDELL: No sleep overs, no active nights. 

MS EASTMAN: Okay. Now, in addition to the work that you do for Home At Scope, you also work one shift a week on a casual basis as a support worker for a person with disability who lives in Melbourne, and you have done that role for about five months. 

MS RIDDELL: Yes. Sometimes less than one shift a week, depending on my availability. 

MS EASTMAN: And did that arrangement come through Home At Scope or did it come through a private arrangement? How did you come to do that work? 

MS RIDDELL: It was just a – I was – when I stopped working full time, I was looking for other jobs to do because I was quite burnt out and thinking about leaving all together. So I was looking for other disability work, and I applied for this job with just a couple who ran their own service. And I went to meet them, and I was like, this is amazing. They are really remarkable people. 

MS EASTMAN: What did you like about that model? 

MS RIDDELL: I guess two things. One, I have a really high degree of responsibility in my job, and the shifts can seem like it's more about my management and about the NDIS compliance than it is about supporting the person. So working for someone who there is no incident reporting, there is no case notes to write, there's no, like, medication sheets to sign, I wait for them to need something and, when they need something, I do it. And it feels – yeah, it – it feels like you're being really useful just for the person you are there to support. 

MS EASTMAN: All right. So I want to move now to some of the matters that you set out in your statement, which you describe as workplace issues that you've seen. So before I ask you about it, just a couple of points to qualify exactly what we are going to be doing. First of all, you didn't want to see this part of your evidence as criticising any person or any service provider and that what you wanted to do was feel that you could tell the Royal Commission your honest opinion about what you are seeing in action, but that you are conscious that you don't want that to be taken as a criticism of the support workers because you say often the incidents that you've seen of violence, abuse, neglect or exploitation result from staff who are undertrained, under-resourced, under-supported or who lack an understanding about disability rights and inclusion, and they are under pressure to get all of the tasks done, and they might not be confident in doing those tasks. 

MS RIDDELL: Yes. 

MS EASTMAN: So that's an important context for the topics that we are going to talk about. So the first thing that you've observed over the time that you've worked is that, as a community, disability support work is devalued by society and so are the workers. It is seen that working in disability support wouldn't be a great job, but you are doing that because you are training for something else, and there is this perception that there must be a better place to work. Can I ask you, from those perspectives, what impact does that have on you as a person who works in this sector and has a long term commitment to supporting people with disability? 

MS RIDDELL: That is a question I have not been asked before. I guess it feels sometimes like I have an obligation to do something that's considered important by society and that, no matter what I say about the impact I'm able to make, the way my job makes me feel and how valuable I know it to be, people just don't believe me. And I would say, in addition to that, that the, I think, unexpressed belief that disability support workers are unskilled and lacking insight means that even people who should listen to us assume we don't really know anything. 

MS EASTMAN: Next issue is non direct care work, and we have sort of touched on this I think already, and that is that when we look at the work required of disability support workers, there is the direct care work, which is supporting a person in their day to day life. That might be, as you say, preparation of meals, intimate personal care, support in the community. But part of the non direct care work is writing up notes, so keeping the records of medication, administration and things like that. And you have noticed over time that the emphasis is on the direct care work, but there is not often sufficient time to be able to do the administrative work and also that support workers are not necessarily trained and supported to be able to write good case notes. And is it right that one of the concerns that you have is that when something goes wrong, people turn to the notes, to the records, to find out what happened and maybe why something happened? So what do you think needs to happen to support the support workers to be able to do the work of non direct care, so note taking? Have you got a view about what should happen in that respect? 

MS RIDDELL: Yes. Definitely. I mean, the big one that I think workers worry about is that we don't get any funding for non direct care hours. So when the NDIS – sorry, this is going to involve a lot of acronyms. When the NDIS prepare the ROC, which is the roster of care for us, only supervisors get any admin hours. And all workers are funded for is the hours precisely when the residents are awake, at home and needing support. If they don't need direct support in those hours or they are away from the house, we don't get funded for those hours, which means you have to choose to do any administration work you have to do, which is a requirement of your job, with the residents there. And especially in the types of houses I work at, you are always needed on the floor. You cannot – it's very hard to choose when to walk away, especially – like, the times where you need to write the best notes are the times where you are also needed on the floor. 

MS EASTMAN: So just a little more time in terms of doing the whole suite of the duties that you need to do and respect for that work in terms of note taking. You think that's a big issue? 

MS RIDDELL: And I guess also better supervision around the kind of notes that we have. Because if you – like, we have, like, a little single page printout that describes what our notes are supposed to look like. But if you haven't had a lot of practice and someone is sitting with you and saying, "Hey, we don't use that phrase" – like, we are supposed to be objective, we are supposed to be chronological. And a lot of the times you read notes and it just says the bare minimum and it doesn't describe things. But you actually need to describe the sequence of events when things happen quite well. You need to be honest about stuff that's happened. 

Like, even if someone's in a slightly different mood, that can end up really mattering three days down the track when you find out that they had a toothache. But if you don't put it in that you observed that they appeared to be doing something different to how they normally do it, or write that you had a conversation about something with a family member or with a resident that ends up mattering down the track, it can seem like things happen out of nowhere, out of context. That – yeah, that there's not, like, a chronology to things. So it matters to write good case notes and to have people to talk to you about how to write case notes that can demonstrate how things happen, because allied health professionals need them and supervisors need them. 

MS EASTMAN: At a big picture, one of the things that you have observed in your work is that there will be incidents of violence and abuse, but you have a concern about neglect. And neglect over a long period of time might be just overlooking or turning a blind eye to something that might be quite small. But if it's not recorded in the notes and it's not followed up over time, then you've seen situations that the person with disability then suffers the consequences or the impact of that ongoing neglect over time. So note taking about observation is one of the tools to protect against neglect. Is that right? 

MS RIDDELL: Yes. I was really lucky for the majority of my career to work under a 2A who was really well trained, really experienced, who had been trained very well by the department, and she taught me that anything you observe and the actions you take go in the case notes. So even if you see something like a resident rubbing their wrist, you don't look away from that. You might ask them, you might read back on the case notes and see did something happen to their wrist, then you document that you observed them rubbing their wrist. This is just an example. This didn't happen, but you document that you saw them rubbing their wrist, that you asked them, what response they gave. And if you have concerns that it's pain, you follow up with their GP and explain the situation to them. 

But if you don't know the resident very well, or you don't have good evidence about the circumstances under which you observed that behaviour, you might just not think very hard about it. But then you may find out later that they were injured accidentally or intentionally and you missed following up on that when you had the chance and documenting where that might have started from. 

MS EASTMAN: I want – so there's lots of topics in your statement and I might not be able to cover all of them, but I want to jump to the training area which you have set out in your statement. And do you think that the training for support workers has steadily decreased in quality and quantity and, if so, why is that the case? 

MS RIDDELL: I – I do think that organisations are under more pressure to get more staff through, because there are a lot more services now. The demand for staff is a lot higher. So it – there are less disability workers available to be recruited. I think more people come and leave the job than I have ever really seen before. And also I don't think training is adequately funded under the NDIS, that you can afford to – like, a lot of the new workers that I see, they do their induction training in their own time. Whereas I was paid – I had five days full time, like, 9 to 5 training, in person, in a classroom with a trainer. I don't think they can afford to do that anymore. 

MS EASTMAN: So in Victoria, you now have the Victorian Disability Workers Commission. And there is no requirement, is there, to register as a support worker? But if you are registered, does the Commissioner require registered support workers to undergo mandatory training each year, like continuing professional improvement training or something like that? 

MS RIDDELL: I don't – I don't want to speak too much about this because I know they are also appearing. But it's not mandatory, it's just for them to get a sense of what training people are undertaking. That's how I understand it. So it's 10 hours of training that you are supposed to report that you've had. And I did have a conversation when Dan Stubbs spoke to us at the conference – Commissioner Dan Stubbs – to say, "I don't think people are getting 10 hours of training to report.” I've had zero hours of training in the last three months, but because I'm studying those hours kind of count. And I think a lot of workers might go years without getting 10 hours of training. 

MS EASTMAN: Do you think that onus should be on the worker to seek out training opportunities or should the provision of training come from the service providers? What do you think? 

MS RIDDELL: I think and know that professional development support and training in our EBA is something that we should be guaranteed to have, an hour of training every month. So getting support – so getting 10 hours of professional supervision and support should be something people get all the time, but they don't. And I think in an ideal world, the training that we get should be, like, refreshers about stuff we already do. Like, first aid we get. CPR we get. But also it should be based on the needs that the clients have. So – residents have, that if you are in a team meeting and you report that someone has been diagnosed with a chronic illness, immediately chronic illness training or training for that specific illness should be on the table. And we do get – if someone has a behaviour support plan, sometimes a behaviour support practitioner will come and train us to understand what's in that plan. But I think most of the time, workers train each other about the demands of the job, and there should be much more context and information that we are provided by professionals, not by each other. 

MS EASTMAN: Can I ask you about a few areas of training. One is about supported decision making. And in your statement, you address choice and control and that some support workers feel they have to re parent the person with disability they are supporting. Has any of your training involved approaches to supported decision making and practical skills as supporting people with disability to make their own decisions about day to day life activities but also broader activities and broader life goals? 

MS RIDDELL: I would say at work I've never received that training. But as part of my graduate certificate, there was a really strong emphasis on understanding how you can support people's decision making and how to interpret people's capacity to make decisions so that you're receptive to everybody, not just people who verbally articulate their needs. 

MS EASTMAN: In terms of the work that you do and measuring your performance, I don't know if you have an annual review of how you are travelling, but is supported decision making and the skills that you use in supporting people to make their decisions measured as a particular area of responsibility or duties that you have to report to? 

MS RIDDELL: We should have every month a check in with our supervisor to talk about how we are travelling, but I think I've had about maybe formally less than 20 hours of PDS in my entire career. And in terms of – and this, I think – no one has ever asked me that, but I think that would be fantastic. But, no, we don't actually have a formal process to make sure that you are following good practice with supported decision making. However, we do have, as key workers, a responsibility to do what's called person centred planning. But the quality of those person centred plans varies a lot. But if it would help you, I can describe the process because I just undertook one. 

MS EASTMAN: That's okay. I might – if we have got time, I will come back. But I'm just conscious of the time. The other is – we heard yesterday from some of the service providers that they have human rights policies. Some have written policies, some don't have written policies but say that's very much part of their values. And there is an expectation that everybody will take a rights based approach. In your career, have you had training on the human rights of people with disability and what that means in terms of how you actually do your job? 

MS RIDDELL: Human rights, especially the UNCRPD, the UN Convention of Rights With Persons With Disability, did feature in the Cert IV. I did briefly undertake the Cert VI and it was never mentioned, but I didn't finish it because the RTO went bankrupt. And definitely in the graduate – and definitely in the graduate certificate there's a massive emphasis on every part of the course reflecting on how that part of study can be influenced by the UNCRPD. 

MS EASTMAN: And also we have asked about trauma informed approaches and culturally responsive or sensitive approaches, and that links in with a person centred approach. Do you have particular training on the skills to do trauma informed work or culturally responsive work? 

MS RIDDELL: Culturally responsive work, no. I've never had training. I think it was mentioned in the Cert IV, and I have only ever worked at one house where I was told, "Here are some cultural needs that the residents have that you have to attend to.” And last year was the first time I ever was presented with the concept of trauma informed care, but I think intuitively a lot of workers that I have worked with understand when you look at people's history, yes, this person has experienced trauma. They have experienced trauma in a care setting like this one, so you do have to undertake your work differently knowing they could be very easily triggered by something that you would think is innocuous. 

MS EASTMAN: All right. And one view you have is that in every workplace, you should assume that abuse is occurring, even if you don't see it or report it. 

MS RIDDELL: Absolutely. 

MS EASTMAN: So the final topic I want to ask you about – and the Commissioners have got all of your statement and will have read everything – is about making complaints. From – and I'm not asking you to comment on the culture of the particular service providers who you work with. But what is it about the culture of workplaces that either prevents people wanting to make a complaint or raise a concern or, alternatively, if your experience is that there are cultures that encourage people and people are regularly reporting incidents and complaints, what is it about those cultures that create that? So I'm not sure what – which one you wanted to speak to. 

MS RIDDELL: That's a really good question. 

MS EASTMAN: It gives you the option of which one you would like to take. But making complaints or raising incidents or reporting even small things around neglect, what are the cultures that either restrain that or promote that? 

MS RIDDELL: Yes. I guess I've seen both, and there is a really broad spectrum. Even working under the same management structure, the way that incidents are handled varies really widely. And I would say the thing that is the greatest facilitator of a confident reporting culture at work is that people are experienced writing reports, that they have been trained to write quality reports, that they have seen the consequences of reporting stuff and believe it to be effective in providing better care and better support. I am – and I do think I mention this in my statement. I am kind of known for being the person who reports stuff. And so when I see something at work that I know needs to be reported, I will make sure I have a conversation with my peers and say, "I'm going to have to do a report about this. Here is what I'm going to say. Here is what will happen. Please don't be intimidated by the process. Like, the reason we are reporting it is so we can fix this or this.” There is usually – usually, like, a – usually a good outcome when you are honest about where something has failed or there has been a mistake. That's not always the case, but I always tell people you have got to approach it with the assumption that when you're honest about what happens, you get a good outcome. 

And then the reverse of that is that if people feel like reporting will go nowhere, have a perverse outcome, where the thing doesn't get solved and you just get in trouble, people will be really hesitant to report. Especially, like, I got training to write reports, and a lot of the people I work with – if I see something – like, it doesn't have to be a really serious issue. It could just be an injury that no one else has reported. So you put in a report about that injury, and I will ask my peers, "Do you want to do the report?” And they will say, "I've never done a report before.” I'm like, "Well, let's do it now. Like, let's practice and you can see what happens.” And then because reports are escalated to – through the management structure, usually it means that someone will have a conversation with us. And almost always people say, "Thank you for reporting.” And that is formal reporting. And then there is informal reporting, which I do talk about in my statement, that sometimes it's easier to report stuff informally than formally if you don't really know how to describe the issue that – like, if it's clearly an injury, that's easy to report. If it's something more complicated or subjective, it's hard to know how to report that. 

MS EASTMAN: If an organisation – so I'm putting a hypothetical to you – has a policy of zero tolerance and if a report or a complaint is made that the support worker is stood down immediately and may be terminated, from your experience does that zero tolerance approach support making complaints, lodging reports, or does it have a consequence in terms of the willingness of support workers to record their own behaviour or what they witnessed of others? 

MS RIDDELL: Well, I think in our industry, because we require a very low level of qualification and sometimes zero qualifications, we tend to recruit people who get the job because they can start quickly, because they need money and because they can learn on the job. They don't have to be invested in it as a career. And I think there is a hesitancy with people to do anything that might lose – that might put them in a position where they lose their income. And so that's part of why I guess I do talk to people extensively about the reporting process, because people do worry that if they even see something or talk about something that they have seen, that that could cause them to lose their jobs. I have also seen where I've reported something the right way about abuse where people aren't stood down. So I don't know if I have ever worked in an environment where we have had a true zero tolerance policy. 

But I would really say that it would be a huge deterrent to people to report if they felt like there was a chance that they could be stood down, especially people who aren't confident writing reports or case notes, who are – don't have experience or – experience with the process or confidence in the systems that we work under. So I would be really – I would be really concerned about making any incentive for people to hide what's going on because what happens – I've seen when you tell people there's a zero tolerance policy – like, I have had managers say, "I could stand you down for that.” Like, it's a threat. It's not really about promoting the best care. Like, what we want is for staff to be able to say, "I have a concern about this. I'm not confident doing this," before there's an issue, rather than making them feel like they will be under a lot of scrutiny if they talk about what they have seen. 

MS EASTMAN: My last question – and the Commissioners might have some questions for you – is you have provided in your statement some suggestions for change. What is your vision or the future of providing supports to people with disability? What do you see as happening into the future? And I haven't asked you that question at all, so this coming without any notice. 

MS RIDDELL: Recently, especially in response to the Commission, I've seen a few articles saying that the model of support that I work in, in Supported Independent Living, is retrograde and it needs to be abolished. And I think that would be a real – it would have to be undertaken with a lot of caution, because I guess I have a sense of history about, well, how we arrived at this point. I work with a lot of people who – not a lot, maybe quite a few people that I've supported in my career who were relinquished as very small children into care, who were brought up in institutions, who rely on strong systems to keep them safe and to uphold their rights. And even though absolutely the institutions were not providing adequate support or care for people, there were aspects of closing the institutions that I don't think people considered and aspects of people's lives and support systems that were lost without really thinking about what those actions would mean. 

So, for example, I supported a couple of people who had really strong responsible roles in the facilities that they lived at. They weren't institutions – like, big institutions, but they would have jobs that they did. And when they were – and this is what I understand from people who were with them during that transition. When they were transitioned into group homes, they lost those responsibilities and felt a little bit unimportant or like they were kind of cut off and left out in the communities that they weren't familiar with. So I would – I would hope that as part of this mission, we are evaluating not just the harm that's done but what people's lives look like holistically, what good happens in group homes that people who would otherwise be really isolated have – sometimes, like – sometimes friends that they have known for 20 years, they live together, they appreciate each other's company, they are advocates for each other. Like, this idea that there is only harm that the done in group homes is certainly not my experience. 

But I do envision a world where formal paid support – and this is completely fantastical, but a world where formal paid support is completely redundant, where having an intellectual disability or having dual disability where you have autism and OCD, or something doesn't preclude you from being free in the community. We don't live in a world like that now, but we could. And so while I would like to see enormous change in my area, I want to make sure that any decision we make and any decision – any decisions that are made that affect me capture the good and the bad of my job. And that while we are looking into systems and services that support people with disabilities, we are also looking out into the world to see if it's safe there too, if it's upholding people's rights in the communities. There are very few places I can go where I know that the people I support will be safe and understood, and I would like that to be everywhere. 

MS EASTMAN: Thank you very much for your evidence. I know you probably feel like you have just touched the surface of everything that you've said in your statement. But the Commissioners may have some questions for you. Chair? 

CHAIR: Yes. Thank you very much. I will ask first Commissioner Bennett if she has any questions of you. 

COMMISSIONER BENNETT: No, thank you. 

CHAIR: And Commissioner McEwin? 

COMMISSIONER McEWIN: Thank you, Chair. One question from me – or more of a clarification, Ms Riddell. Thank you for your evidence. I can't find the specific reference, but I wanted to clarify. It's your view that there has been too much now focus on being that support workers are doing, like, cleaning and hygiene rather than more capacity building out in the community. Can I just clarify that's your view? 

MS RIDDELL: Absolutely. And if I can expand on that briefly. A huge part of my job used to be about supporting people's entire lives. And since the introduction of the NDIS, I don't have much to assist my residents with when they go out in the community because they have separate funding that has to be attached to a separate provider. And the ability that we used to have to keep proper documentation about what people want from the rest of their lives is completely eliminated. And there is very little accountability from these services. So I have residents who are non verbal, and they come home and I – from six hours with a one to one provider. And I will say, "What did they do today?” They would say, "We went to the park.” You went to the park for six hours? Doing what? Like, I know this person. I know they have diverse interests. I know they have family and social networks that they could connect with. How can you say for six hours, five days a week, they just went to the park? That is really, really, really unsatisfactory to me. Sorry, really passionate about that one. Thank you for asking.

COMMISSIONER McEWIN: Thank you very much for clarifying that. 

CHAIR: In your statement, you referred to the difficulty of doing the paperwork that you have explained is so essential to providing effective support for the people that – whom you do support. What is it that has changed, that has made it so difficult to prepare the necessary paperwork? You suggest, I think, that it was easier once upon a time, now more difficult. What's been the change that affected this? 

MS RIDDELL: Certainly there is – even in the lead up to the NDIS, we were warned extensively that we would lose all admin hours. We would need to get used to not spending any time in the office. We would need to get used to channelling most of our administrative work back through our supervisors, which is not fair on them because they work really hard. And especially now that there are NDIS rosters of care in place, if you work in a busy environment like the one I work in, to have the time to sit down for half an hour and write comprehensive note, catch up on emails, make sure – I probably should have written a list for you. But as a key worker, there's a lot of administration you need to keep up with to make sure that everyone's paperwork is up to date, to make sure that you are following up on the residents' needs. 

But if you don't have time to go into the office and do that stuff, if there's an expectation that you should just be with the residents when they are home, you have to make the decision to tell somebody, "I'm sorry, I can't help you with that. I have to go do paperwork," which is really unsatisfactory to me, or you have to – like, I'm in this position at the moment. You just have to be a little bit behind on everything, which is awful. Like, you want to make sure that you have the time and capacity to be responsive when someone needs something. 

CHAIR: Thank you very much. Well, thank you very much, Ms Riddell, for your very thoughtful evidence, if I may say so. We are very grateful for your assistance to the Royal Commission. Thank you.

MS RIDDELL: And thank you. 

CHAIR: Ms Eastman. 

MS EASTMAN: Could I tender Ms Riddell's statement. 

CHAIR: Yes. 

MS EASTMAN: And could you mark the statement as Exhibit 32 2. 

CHAIR: Yes. Ms Riddell's statement will be admitted into evidence and given that marking. 

<EXHIBIT 32 2 STATEMENT OF ZELDA RIDDELL 

MS EASTMAN: Our next witnesses I think are here. If we could just have a short adjournment to reconstitute the hearing room. So  

CHAIR: Yes. We will adjourn briefly to allow the reconstitution to occur. 

MS EASTMAN: Thank you.

CHAIR: Thank you again. 

<THE WITNESS WITHDREW

<ADJOURNED 11:01 AM 

<RESUMED 11:10 AM 

CHAIR: Yes. 

MS EASTMAN: Thank you, Chair. So we are back to a panel, but a panel of two. And I welcome Dr Fiona Macdonald and Mr Angus McFarland. And I think they are going to take their oaths and affirmations. Is that done? That's already done. Okay. Very efficient. 

CHAIR: That's already done. Yes. That's right.

<ANGUS McFARLAND CALLED 

<FIONA MACDONALD, CALLED 

CHAIR: In that case, thank you very much for coming to the Royal Commission to give evidence. We appreciate your attendance and the very detailed statements that we have received and which we have diligently read. If you will be good enough to pay attention to Ms Eastman, she will now ask you some questions. 

<EXAMINATION BY MS EASTMAN SC 

MS EASTMAN: So I just want to start with some introductions. So, Dr Macdonald, can I start with you. 

DR MACDONALD: Yes.

MS EASTMAN: You are Fiona Macdonald? 

DR MACDONALD: I am Dr Fiona Macdonald. I'm currently employed – 

MS EASTMAN: Can I – sorry. 

DR MACDONALD: Sorry.

MS EASTMAN: Can I do a little bit on this just to hopefully make it fast.

DR MACDONALD: Sure.

MS EASTMAN: So you have prepared a statement for the Royal Commission. Have you got a copy with you? 

DR MACDONALD: Yes, I have. 

MS EASTMAN: The statement is dated 3 February. There is no changes to the statement? 

DR MACDONALD: No, there aren't. 

MS EASTMAN: Are the contents of the statement true? 

DR MACDONALD: They are. 

MS EASTMAN: Now, in terms of who you are, you currently are the Policy Director, Industrial and Social, at the Centre for Future Work, which is housed in the Australia Institute. 

DR MACDONALD: Yes, I am. 

MS EASTMAN: And your research over many years has been the disability support workforce, and you have undertaken three ARC funded projects. And your main research program has been investigating the structure of working arrangements and the quality of work of disability support workers in the NDIS. And you set out in your statement a very extensive CV and your publications. So one of your recent publications is a sole authored book called Individualising Risk: Paid Care Work in the New Gig Economy. 

DR MACDONALD: That's right.

MS EASTMAN: That sounds like a very interesting project, and if time permits, I will be asking you some questions about that. So welcome to the Royal Commission. 

DR MACDONALD: Thank you. 

MS EASTMAN: Mr McFarland, you are Angus McFarland? 

MR MCFARLAND: Yes. 

MS EASTMAN: And you prepared a statement for the Royal Commission dated 25 January 2023. 

MR MCFARLAND: That's correct. 

MS EASTMAN: You have got a copy of the statement with you? 

MR MCFARLAND: Yes, I do. 

MS EASTMAN: There is no changes to the statement? 

MR MCFARLAND: No, there aren't. 

MS EASTMAN: And the contents are correct? 

MR MCFARLAND: Yes.

MS EASTMAN: And you are currently Branch Secretary of the Australian Services Union, New South Wales and ACT, Services Branch. 

MR MCFARLAND: Correct. 

MS EASTMAN: And that's a role that you have held since September 2022? 

MR MCFARLAND: Yes. 

MS EASTMAN: And in your work with the Union, you have had considerable experience working with members in New South Wales and the ACT in resolving workplace issues, representing members in enterprise bargaining negotiation, leading campaigns to improve funding, pay, condition, training, workforce development for the members. And the members are, for the most part, people who might be described as disability support workers. 

MR MCFARLAND: That's correct. 

MS EASTMAN: So the people like Zelda Riddell who we have just – is that right? 

MR MCFARLAND: Exactly. Yes. Thank you. 

MS EASTMAN: Okay. All right. So a warm welcome to you to the Royal Commission. As the Chair said, you have both provided us with very extensive statements setting out a lot of information. I want to do the best that I can to cover the issues. So, Dr Macdonald, can I start with you. The work that you've done and the research you've done would no doubt have given you a very good insight into the profile of the workforce. And as you know, the Royal Commission for this hearing is looking at disability service providers and, in effect, their employees providing supports. But the workforce is broader than that, is it not? And can you give us an overview or a profile of the workforce? 

DR MACDONALD: I can give you a profile. I can perhaps start by saying there's very poor data, due mainly to the disaggregation – 

MS EASTMAN: If I can get you to slow down a little bit. Sorry, I was going a bit fast. My apologies. 

DR MACDONALD: Okay. It's not possible to disaggregate the Australian Bureau of Statistics occupational category, aged and disabled carers. So there is – you know, the estimates of – the workforce estimates come from different sources and vary a bit, but it's pretty clear the NDIS workforce plan – the recent NDIS Workforce Plan and recent work by the National Skills Commission have given a fair bit of information about the workforce, as does the National Disability Services workforce surveys. So the NDIS support workforce is estimated to be about 242,000 in 2020. Most of this workforce is personal care and support workers. And the – it's estimated that about two thirds of that workforce are home based. Another 23 or four per cent are community based personal care and support workers. And included in that personal care and support workforce worker category, there are 10 per cent who are allied health workers. 

MS EASTMAN: So what does that mean if we dig lower into the profile of that workforce? Is your research and data available – able to tell us where – what the distribution may be? Is it located mostly in metropolitan centres, or do we see the workforce really spread evenly throughout Australia? Have you captured that data? 

DR MACDONALD: I haven't captured specifically. I think it's potentially there in the – probably there in the National Skills Commission care and support workforce study. That doesn't distinguish between aged care and disability support. It may also be captured by the NDS, but I'm not aware of that breakdown. I can tell you a bit about the demographics of that workforce. It's a highly feminised workforce. 

MS EASTMAN: It's about, what, 66 per cent? 

DR MACDONALD: Yes, although that's in the care and support workforce generally. I think it may be higher in just the disability support workforce. Slightly higher representation of non English speaking background workers and overseas workers. Like, 40 per cent of those belong to one of those two groups where the – across the workforce overall that's more like 32 per cent. So – and it's a slightly older workforce than the total labour market workforce. 

MS EASTMAN: What do you mean by "older workforce"? 

DR MACDONALD: Has a slightly older profile. There are a higher proportion of workers who are aged 45 and over. However, there is an increasing proportion – there has been a new entry of younger workers too. So that's shifting as well. 

MS EASTMAN: So coming back to the profile that you've described, what sort of qualifications will support workers have within that profile? 

DR MACDONALD: Okay. The profile of workers is also – you talked about workers in service providers. I think it's worth looking at the – there's a varied profile across bits of the industry that's not about geographic distribution but about where people are located. So if we take the disability support workers workforce as the largest of that group, they could be employed by registered or unregistered – and/or unregistered service providers employed directly by people with disability or employed through – have their employment intermediated by a third party such as platforms. And they may be employees and independent contractors. And  

MS EASTMAN: Just to jump in there. So essentially we are talking about people who are paid to do this work. 

DR MACDONALD: Paid work. 

MS EASTMAN: We are not talking about unpaid volunteers. 

DR MACDONALD: No.

MS EASTMAN: And that sector, if it does exist, which it does, that's not part of looking at the profile or – 

DR MACDONALD: No, this is the paid support workforce and paid – paid support workforce who are paid primarily by NDIS funding. There are some other forms of funding, but it's primarily by the NDIS. 

MS EASTMAN: My apologies for interrupting. 

DR MACDONALD: That's okay. So the structure of that employment has – is characterised by very, very high levels of part time work, very high levels of casual work. We – there are about 34 per cent is one – is one – probably the most accurate estimate of the extent to which the workforce is casualised. And of the other 66 per cent who are permanent, about 80 per cent of those workers are part time. 

MS EASTMAN: Right. And, Mr McFarland, I'm going to come to you because that's got some implications where you have a workforce where it's highly casualised, part time, and those demographics will have some implications, I think, to the workforce issues that you want to speak to. But can I ask you about the qualifications of support workers. For your members, what qualifications are required? And we have heard a bit this morning of a cert, or a certificate, II, III, IV – I think Ms Riddell referred to VI and VII. What does that all mean? 

MR MCFARLAND: So in the National Disability Insurance Scheme, there is no requirement for a support worker to have any qualification whatsoever. All workers are covered by a mandatory Code of Conduct that applies to them. There are some online unaccredited sort of info videos that you are encouraged to watch when you start working in the sector. But beyond that, there's no requirement in the NDIS to have a qualification as a support worker. 

MS EASTMAN: But some people do have qualifications. 

MR MCFARLAND: But many do, yes. 

MS EASTMAN: So why would you have a qualification if it's not required? 

MR MCFARLAND: I think because many people – it used to be requirements by various State Governments or employers over time. I think people also want to – you know, are committed to, I guess, seeking further training and development. And when they were able to access that more easily – I think there are access issues now, which I can talk about later. So my understanding from our members is probably around two thirds of support workers in reality do have a Cert III or Cert IV. 

MS EASTMAN: Okay. So tell me what Cert III and Cert IV means. Assume I know nothing about that. What are they? 

MR MCFARLAND: Okay. So certificate III is a qualification in individual supports, which you can have a focus on disability or aged care. And it involves around 70 hours of classroom face to face learning and approximately 120 hours of workplace training and assessment. To complete a Certificate III, there are around seven core units you have to do and then six elective units. And the units are in things like supporting independence and wellbeing, communication at work, working legally and ethically, safe work practices, what I would call as foundational, generalist skills that are important as a foundation to working in the sector. 

MS EASTMAN: So can I ask you this: the NDIS has a capability framework, and that's intended to sort of set out, as I understand it – and correct me if I am wrong – the sort of minimum requirements on capability for support workers. 

MR MCFARLAND: Yes, they describe it as its the government's expectation of what good support work should look like. So  

MS EASTMAN: Well, let me put it – is it the sort of lowest common denominator or is this aspirational highest common denominator? 

MR MCFARLAND: It is everything. It is basically the broad ecosystem of a diverse workforce that is required to meet a quality NDIS for participants. 

MS EASTMAN: So if people don't have a Certificate III or Certificate IV and they are unqualified, then how do you meet these expectations of the capability framework? 

MR MCFARLAND: I think it's really difficult, near impossible, to do that without that support. So there's the – there's the regulatory environment of the Code of Conduct, the capability framework. There's also, I think, just the contemporary expectations of people with disability that the NDIS has rightly given them to be able to receive and have choice and control over really diverse services that support their needs and aspirations. That is difficult to achieve in a workforce that doesn't have any base training in sort of disability theory and practice, but also some more specialised training in the particular kinds of – types of disability or identities or supports that are required. 

MS EASTMAN: Right. Dr Macdonald, any comments from you on this issue? 

DR MACDONALD: Only to say that I think it's pretty clear that it's expressed as the expectation of disability support work. And I think, you know, there can be some – you know, I think there's sometimes a bit of a debate about whether there are values rather than skills expressed in the – in those kinds of capability frameworks. But I know that in the UK, for example, where values based recruitment has progressed and been thought about a lot more than it has here, it is clearly about behaviours that can be supported and facilitated through training. So I am saying that because I think that whether you want to call parts of the requirements of that framework skills or values doesn't make any difference to the need for training is really clear. 

MS EASTMAN: Can I turn to a different topic, and that is the remuneration for disability support workers. The Royal Commission has heard, and we have read the research reports, that in the disability sector there's a sense that the work performed by disability support workers is extremely important work, has to be done from a rights based trauma informed approach, have a lot of requirements on people, but that work is not valued in the same way that work in other industries may be valued, and that undervaluation of work manifests in low rates of pay for disability support workers. 

So, Mr McFarland, in your statement, paragraph 36, you set out the rates of pay for support workers by reference, I think, to the award, and the Commissioners have heard about something called the SCHADS Award. I will spare everybody how modern awards work in terms of a work value and determining classifications and rates of pay. If anyone is interested in that topic, we can deal with that separately. But looking at what the rates of pay are, can you give us a sort of sense about what the average annual remuneration would be for a support worker and, in answering that question, whether that depends on whether the person might be working casually or full time and whether that has a vary in working out average remuneration. Is that something you can comment on? 

MR MCFARLAND: Yes. So I think that – so the minimum hourly rate for a disability support worker is $30.45, which is in my statement, for a permanent disability support worker. And for casual, it is $38.07. And I should say, that is just seven cents more per hour than the minimum wage for a retail worker. Now, we have spoken about the complexity of the work and the skills required, and we know that those award rates are one thing, but the hourly rate – if you are looking at annual pay to your point that you raise, we need to consider that this is a casualised workforce with predominance of short hour part time work with limited progression, short engagements, et cetera. 

So my guess is – and just in terms of annual wages, I imagine and from memory, you are looking at between 40 to 60,000 dollars. And it depends on the hours that someone is engaged. But it's a low paid industry. And even if you are on an enterprise agreement, most of the enterprise agreements in this industry are not – the pay levels are not higher than the award. They might have some condition variances that make them better off overall, but the pay is generally always pegged to the award. So those award rates are pretty standard. 

MS EASTMAN: So when we are talking about working out those rate, the Fair Work Commission will decide the modern award, so the terms and conditions with the Fair Work Act, and then set out the classifications and the rates of pay. But employers or groups of employers can come together, and they might negotiate with their employees what's called an enterprise bargaining agreement. So the award is still there, but the agreement might have different terms and conditions that might result, in some cases, higher rates of pay or different additional leave requirements or things like that. Is that right? 

MR MCFARLAND: It is right. But one missing piece of that description is that, in the NDIS, the prices are capped. So the amount of money – the agency makes an assumption that people are paid the correct minimum wage. And so it funds its packages based on the correct minimum wage, but there is also caps there. So there's no capacity in the funding that you get as a provider to really pay beyond the award minimums as well. So that's a regulatory cap that makes it very difficult for a single provider, or indeed a group of providers, to negotiate with their workforce above that. 

MS EASTMAN: So the traditional idea is that employees, perhaps represented by a union, and employer negotiating. It's ring fenced by the NDIS. So it sort of sets a context to it. And that's a little bit different to other industries, isn't it? 

MR MCFARLAND: That is right, yes. 

MS EASTMAN: In terms then of that process of negotiating enterprise agreements, are either of you able to say how frequent enterprise agreements are in this sector and the extent to which workers are more likely to be on the modern award or to be employed pursuant to enterprise agreements? 

DR MACDONALD: A recent financial benchmarking survey undertaken for the NDIS identified 10 per cent of the respondents to that survey had an enterprise agreement. And I have looked through those – not all of them – and it's – as Angus said, you know, the pay – if there's pay above – you know, one of them I think had, for example, that it was 95 cents was the – above the award rate was one above award pay, and another one was a commitment to providing .025 percent above the award rate. So – 

MS EASTMAN: Well, Dr Macdonald, you have mentioned earlier in answer to a question about something called independent contractors. So these are people who are not treated as employees but in effect sell or give their, you know, labour at their own price, and they set their own price or whoever it is that might need it. One of the matters that you've dealt with in your statement is looking at independent contractors, but the sort of current vogue word of this is the gig economy. And what are you seeing in terms of any trends of support workers saying, "I think I can actually get a better rate of pay, better conditions. I haven't got all of the regulatory arrangements sitting on my shoulders. I think I'm going to see if I can say I'm here to do your services. I'm happy to be employed directly"? Are you seeing a trend in that? 

DR MACDONALD: There's a trend – and, again, I don't know the numbers. It's very poor data. But one platform that works with disability support workers, that's large, maintain that they have 10,000 care and support workers on their platform, and they require workers on their platform to be independent contractors. But independent contractors may work in direct engagements with people with disability or they may also be working through service providers. The question of independent workers – independent contractors' motivations for working in those roles I think is not clear, I don't think, with any data. I know that if it's through digital platforms, it's – those platforms advertise and promote the idea of contracting as a better way. So I – there is mixed information about why people do this. We do know, as Angus mentioned, there is large proportion of multiple job holders in this industry. They have – one estimate is 14 per cent. We think perhaps it could be higher, because of very short hours worked. So people are putting jobs together. The workforce is not workers who work here and workers who work here. The workers – many workers work across different forms of employment with registered service providers, with individual people requiring support. 

So there is also – there has been quite a bit of talk, I suppose, about, you know, the idea that you can get paid a lot better on a platform, and I think probably some people can. I think – my research suggests that there is a bifurcation of the workforce. More experienced workers who have been trained and had experience in – with former registered service providers can attract high rates of pay. Less experienced workers, who there are very many of on these platforms, tend to – are offering very low prices. And the information that we do have that's published suggests that the average rates on some platforms – and I'm going by platforms. I don't know – you know, there is so little visibility of workers who work directly. But the pattern on the platforms is this bifurcation. And inexperienced workers offer – and, again, in my experience, in my research, see the casual rate as the rate, don't take account of the costs and the loss of entitlements and benefits. So those workers will seek a pay rate that's equivalent to the casual award but, in fact, is effectively under that. 

MS EASTMAN: Under. Well, that is because they don't have the protections under the Fair Work Act in relation to unfair dismissal and workers right – 

DR MACDONALD: No. 

MS EASTMAN: – or the National Employment Standards. 

DR MACDONALD: And they don't – no.

MS EASTMAN: And maybe not the superannuation or the insurances around work health and safety. 

DR MACDONALD: Yes. Yes.

MS EASTMAN: So those costs are not factored into the rates. 

DR MACDONALD: By the individual workers. And the platforms sell their services on the basis that there are less – their services to individuals are much cheaper than providers, but that's because they don't pay for training. They don't pay for supervision. They don't have any quality assurance processes. 

MS EASTMAN: So just finishing on this topic is there's very little research at the moment as to what the prevalence is, how these systems work and then what the broader implications might be. Is that right? 

DR MACDONALD: There is limited research, yes. 

MS EASTMAN: Well, how does – I want to then – that takes me to career paths. And when the NDIS was established, I think there was an expectation that this would be a very significant opportunity to grow employment opportunities in Australia but also to give people coming into this sector career paths. In terms – Dr Macdonald, in terms of your research, have you seen over the last eight to 10 years, say, a change in the way in which support workers now have career paths in working for disability service providers? And, Mr McFarland, I welcome your input on career paths as well. 

DR MACDONALD: Disability support workers coming in don't have career paths, and that goes to the – it goes to the structure of work. The funding model limits – the funding model – the service providers' responses to the funding model and the funding models' impact, I think, on the workforce more generally has been establishing a flexible workforce with on demand workers who are able to meet individual clients of the providers, requirements and variable requirements. So that's led to increasing large workforces of less experienced casual workers with shorter hours who also, because of the funding model, which at that level expects 90 per cent what the NDIA calls labour utilisation, which is actually face to face contact, it doesn't provide for training, supervision – it provides for training and supervision, sorry, but limited training and supervision, limited peer support, limited contact with peers. And that takes – I think takes away the opportunity for workers to – workers don't get established so quickly. There's very high turnover rates of newer workers. And the funding model also doesn't particularly provide for – it doesn't provide for increases as workers stay and become more experienced. If they are in those casual roles, they tend not to do that. So there is no career path with that increasing – if that makes sense. I'm not sure if I'm making sense there. 

MS EASTMAN: No, definitely. What do you see, Mr McFarland, from your members in terms of coming into the industry and seeing this industry or sector as an opportunity to build a career path? 

MR MCFARLAND: I think many of my members that come into the NDIS want the NDIS to provide for them such a career path because they are committed to supporting people with disability. That's what drives them to this sector. But it doesn't provide it for them. I think, you know, the promise of the NDIS to people with disability was that they would have choice and control for a diverse range of services to meet their needs and aspirations. That meant having available a skilled and capable workforce that can provide generalist but also specialised supports. But to what my colleague Fiona has said around issues to do with fragmentation of work, no training requirements – but not just that, I should say no time to be trained – and people working across multiple providers, everything's sort of fragmented like that. It's really impossible for people to have these career paths. And it's turning workers away. It's why we see huge churn. Something that we haven't mentioned is that one in four workers are leaving the sector a year. And ultimately, it's – it's a real issue for participants because they are not getting that – 

MS EASTMAN: I think on that rate of attrition and the high turnover or churn, Dr Macdonald, this is something you've commented on in your statement, I think, Commissioners, at paragraph 28 and 36. What has your research told you about the retention or attrition rates? I think we have spotted a recent report from the McKell Institute that suggests that the rates of attrition for NDIS support workers is probably higher than retail and other sectors. And, Commissioners, we will get that report for you. 

DR MACDONALD: The National Skills Commission looked at attrition of – in the care and support workforce, which includes aged care work as well as disability support workers, through a study that gathered data over the last decade, or a little bit longer than that. They found only that three in five workers spend less than three years. 

MS EASTMAN: Less than five years. 

DR MACDONALD: Three in five workers spend less than three years. 

MS EASTMAN: Less than – less than three years in the whole of the industry? 

DR MACDONALD: Yes. So they come in, but – three in five of every worker who comes in in that – came in in that period stayed less than three years. 10 percent spent nine years – stayed in for nine years. And the turnover was highest amongst young people and is a really significant problem in the first year. 

MS EASTMAN: Would that reflect what Ms Riddell was talking about – and I don't know if you had a chance to read her statement. You may not have. One of the issues she identified was the attitude within the community about working in this sector, that the assumption might be that you're only doing this job because you have to or that – the sense is that it is a job with very low skill. And so the perception about doing this work, do you think that might be a factor? Has your research revealed that? 

DR MACDONALD: My research has been with current workers who – you know, always the first thing they say is they love their jobs. But they don't say they can stay in their jobs. 

MS EASTMAN: Why? What's the reason? 

DR MACDONALD: Well, we have talked about the unemployment and multiple – it's very, very difficult to sustain – to earn a living wage when you are trying to patch together multiple jobs and multiple jobs with variable working time requirements. Workers say you can't plan, organise your life. Some workers that I have interviewed, talk about inability to actually organise anything regular outside their work, let alone try to keep a space in their work for, say – it's their job that they know is going to be every Friday, they need to be available for this other provider who wants them to be available all the time. So workers who work seven days a week but only, you know, work 25 hours. And workers who have – there's a lot of engagement of permanent part time workers on low hours, regular hours – contracts, but with this availability to be – you know – requirement or expectation to be available above and beyond that. 

MS EASTMAN: Is it almost like being on call? 

DR MACDONALD: Yes, yes, yes.

MS EASTMAN: That with very little notice, somebody doesn't turn up for a shift, but we know that, you know, Mary might be available, so you call her. If she comes in, she might do a double shift, but she may not have planned that in advance. Is that the sort of situation? 

DR MACDONALD: Yes. And so that leads not only to inability to study, inability to do other things like work, it also leads to insecurity of income and uncertainty about ongoing employment. So I don't – I have not interviewed enough workers who come in and spend their first year in work what causes them to leave, but I know that those are very common conditions across the workforce, as are the experience of not enough time to do your job well, inability to contact somebody when you are worried about – or you have got a question or you are concerned about something and you can't get a supervisor on the phone. So there is a feeling that you are not doing a good job, and that feeling that you're not doing a good job – experienced workers talk about that as a result of seeing other casuals coming in who don't – who are unfamiliar with people, unfamiliar with requirements, but also themselves not having the time and the issues that have been raised about inability to, you know, not – knowing something is wrong but not knowing if you can report it, how to report it. 

So I think all of those things, I don't – you know, feed intentions to leave. And one of the things – you know, workers do talk about lack of consistency, lack of continuity, the very things that are connected to quality of care and quality of support in – well, in my study and in international research are the things that workers are distressed about and that they name. They name that plus pay when they talk about intending to leave. 

MS EASTMAN: Mr McFarland, in terms of the work that you do in supporting members, have you seen similar trends in terms of the attrition and the reasons why people are leaving? 

MR MCFARLAND: Yes. So the attrition rates are, as you said, really high. And that report that you referred to from McKell talked about it being higher than hospitality and retail. And we do see that all of the time. And I think it's a combination of factors as to why people leave. I could sort of describe it almost like a game of snakes and ladders in the NDIS. You get a job in the disability sector, you are really passionate about that, that's a ladder. Then suddenly you find it's only a short hour casual contract. That's a snake. You seek a second job to support your income and your family, that's a ladder. But then you find for that participant, there is no training at all for their very particular disability and you are worried about doing the job safely and well. 

So it's – and these things compound upon themselves. You are working for multiple employers. You don't have entitlements or recognition of your service in the scheme. You don't have training. You care a lot about the people you support, but you don't want to put yourself or them at risk. And often people leave. They are burnt out. They don't feel supported. They are working isolated. That's another thing. The work is increasingly more complex because it's increasingly more isolated.

MS EASTMAN: What do you mean by that? 

MR MCFARLAND: So prior to the NDIS, most of disability support work would have been provided in a group home setting or a home setting where there were other staff rostered that you were working on a shift, and you had a supervisor, often on site. The NDIS has seen a rise in workers working directly with participants in their own private residence or in the community, and that's a good thing. But what it has meant is that workers are more independent. They are expected to be responding, showing more initiative and judgment, and that requires, you know, more training and support and, I also would argue, more pay because the complexity of the work has changed. So it's also very stressful in an environment where you are making lots of decisions and judgments without supervision and support independently. And that's another reason why I think people are finding it too hard. 

MS EASTMAN: I want to turn, just before the Commissioners might ask you some questions, to the way forward. And one of the tasks of the Royal Commission is to think about the types of recommendations to governments and perhaps even recommendations to those running the services. Are there any concrete improvements that you think that could be made to support the disability support workforce so that skilled, qualified workers remain in the industry and that you are building career paths that, one would hope, would lead to high and better quality of support for clients? What do you think based on your respective experience as a researcher and on the ground would make a difference? Dr Macdonald, can I start with you? 

DR MACDONALD: Yes, I think first that any – so any changes need to actually see the system as a whole. It's not a case of how do we make it better for the support workers and registered service providers or unregistered service providers because each changes in – any changes in each of these areas impacts across the whole workforce. The workforce isn't segmented such that only some workers only work in direct employment and some workers – I mean, there will be some workers who only do that. But a lot of workers work across different forms of employment and different providers. And any change in one area is going to impact on another. So I think problematically one of the pressures on registered service providers currently is competition from unregistered service providers and third-party platforms and other organisations who provide a cost benefit to the individual person who is trying to make their support plan funding stretch as far as possible. That undermines the capacity of registered service providers to provide training, to provide the kinds of secure employment that could be the basis of a pathway. 

And if – if individual employers can't take responsibility – aren't able to it have – to be the source of that security for a worker and a pathway, that has to be a system wide responsibility. It can't be the responsibility of an individual directly engaging their own worker, and it can't be a responsibility of a worker who is in lots of short hours jobs. So there needs to be some kind of systemic response, and I think the beginnings of that would be mandatory registration and some form – some collective arrangements such as – that allowed for portable entitlements, both leave and training. But I also think – and this is from my experience of interviewing workers who are directly engaged or work through platforms. Workers need some kind of organisational support. There are a lot of workers who are very insecure in their – in dealing with the complexities of their interpersonal relations – you know, the interpersonal relationships in individual support as well as service providers, and they are totally isolated. And they will leave their jobs because they don't – you know, they can't manage those things by themselves. There needs to be some kind of collective response across the system. And I've suggested something, you know, akin to a – you know, an umbrella type body like a group training organisation or regional bodies perhaps built on the LACs. 

MS EASTMAN: Right. Mr McFarland, I think you also raise portable training, portable leave and national registration as well. Are there any additional factors that you think would provide concrete improvements for the way forward? 

MR MCFARLAND: Yes, I just want to emphasise one particular point, which is that the NDIS – a lot of the fragmentation that exists in the workforce that does drive people away, the multiple jobs, the casual short hour jobs, is, I think we have to understand, fundamentally a feature of the design of the NDIS. The concept of choice and control, the fact that not every single participant will want a full time support worker and their needs will change. I fully support choice and control by the way. But what I'm trying to say, though, is if that's what the system has led to, I think the system then needs to respond to that. And a way to do that is through things like portable entitlement schemes where a worker's service would be recognised to the scheme. So if you change from participant to participant, you would carry with you your sick leave, your annual leave, your long service leave, whether you are employed directly or a casual or a contractor, and that would give you a sense of security in the scheme and a recognition for your service to the NDIS. 

And the same thing with training. The – you know, how can someone who is casual here, part time here, on a gig app over here, take the time to complete a Certificate III or Certificate IV? And the concept of portable training is that workers in the NDIS would get access to ongoing accredited professional development like other professions. But importantly, they would accrue the paid time to do that. Because study leave does not exist in the NDIS, and speakers have spoken about that previously. So they are concepts that our members support, and I know, through many discussions, that service providers – many service providers are advocates and participants support those solutions to fix it at that scheme level. And obviously worker registration, I think, would form a part of how you would implement those things. And I think if you had positive worker registration – I refer to it as positive because the registration would provide workers with secure employment and training and professional development – that would be very supported by the workforce. 

MS EASTMAN: Well, thank you both for preparing very detailed statements and sharing your experiences and, Dr Macdonald, for your research. The Commissioners might have a few questions for you. 

CHAIR: Yes. Thank you very much. I will ask first Commissioner McEwin whether he has any questions for you. 

COMMISSIONER McEWIN: Thank you. I just want to understand better to both of you, when you are talking about addressing the isolation, I think, that workers are experiencing with working with individual clients and things like that – so, Dr Macdonald, at paragraph 112 in your statement, you suggest a sort of a collective workforce development initiative. So if you had that, that would address the concerns around isolation and supervision and support – and workers feeling supported. So why would you need a mandatory registration system? 

DR MACDONALD: Because you would have – I think you would have to have a mandatory registration to identify the workers. Perhaps if – unless all workers had to go through one of those bodies to – to be – or the person – the individual person with NDIS funding had to go through one of those kinds of bodies to engage a worker. I think it amounts to the same thing, in my – 

COMMISSIONER McEWIN: How would that rectify pay issues and other issues that you have identified? When we are talking more about the individual clients getting, you know, the right support, but then that worker feeling supported, which they could do with their peers or a collective workforce development institute. 

DR MACDONALD: It would connect participants and workers to an organisation that provided information about the correct pay level, provided information – I think at the moment people who directly engage their workers get very little support around how to do that, how to do that well. And I think it's – you know, we know from small business employment issues that it's – there's a lot to deal with. It's not a simple thing. But, you know, you could potentially have separate organisations for people to support them, to self manage. User led organisations I think I suggested. There are some examples of these in the UK that support – support people to manage their employment of their workers well. The body that I was suggesting was to ensure that workers are linked to the system. And I do think it's – from my experience, inexperienced workers in self managed relationships – work relationships do encounter a lot of instances of where they are unsure about what – if what they are doing is okay and need advice and support outside that relationship. 

COMMISSIONER McEWIN: Thank you. 

CHAIR: Commissioner Bennett. 

COMMISSIONER BENNETT: The core issue in all of this is actually the quality of care. It's a quality issue. The Aged Care Royal Commission looked at workforce issues with that lens and the quality of care that people in nursing homes were receiving, or other aged care services. They recommended almost a star rating system so that consumers of those services would have a much – and in that star rating was staff training, staff skills, liability, continuity of care. Is that something that could focus the mind of providers as employers to bring greater stability to its workforce, to up the quality of its workforce? 

MR MCFARLAND: Look, I think it wouldn't go to addressing the core issue which is around the fact that an individual provider is limited in what they can do because of the way that the NDIS is designed. So there isn't funding for – the disability sector is a fully government funded scheme. There's no co payments, et cetera, and prices and packages are capped. So what it means is that an individual provider, despite the best intentions in the world, can't provide study leave for its employees to undertake a qualification and then ongoing professional development. So I think that it – a star rating system like that would only make sense if there was an enabling environment for people to reach five stars. That's – that's – in terms of their industrial considerations, like do you provide good jobs, good training, career pathways. 

DR MACDONALD: And, yes, similarly I think the star rating system relies on consumers having information, having access to that system. It – and I think – and understanding how that system works. And I think – I don't think we have, you know, the kind of perfect market in which a star rating – in which goes – another way of saying what Angus has just said, I think, that would mean that a star rating system would be particularly helpful. 

COMMISSIONER BENNETT: I suppose I wasn't specifically meaning in that same sense but the fact that quality was put at the forefront, and quality is made up multiple factors, and that also not only for the client but also for people who might want to work in an organisation. But thank you for your response in that question. 

CHAIR: Very briefly, how would a registration system work for disability support workers? 

MR MCFARLAND: Well, I believe that there currently is NDIS screening systems that work – sorry, that exist, which – and there's some registration systems that work in Victoria, which I understand there will be evidence on later today, which are voluntary. But the way that I see a positive registration system would be that you would be linking the risk based screening that workers need to do with also a process of registering and credentialing workers so that, as you are coming into the sector, you would then, as part of this register, be able to access and accrue training and leave entitlements. So looking at how you would develop, like, leave authorities that exist and training authorities into a central register. So it would be multi functional and purposeful for workers, and I think for participants, to do it like that. 

CHAIR: I see. Thank you. And you mentioned such matters as portable entitlement schemes and portable ongoing accredited professional development. Are these matters for industrial tribunals? 

MR MCFARLAND: No, because the – establishing a portable entitlement scheme – they do exist in other jurisdictions, and they are established by government because of the way that the requirements do pay into it or how they are regulated. So they exist in state levels for long service. But we are suggesting they could exist federally for the NDIS because of the way that it's funded. And in terms of training, the training requirements and standards and support and funding for training is something that I – is all designed and controlled by the agency, NDIA, or the Quality and Safeguarding Framework and the government. What industrially could happen I guess is that if those things are in place, you could then see how you recognise that in the awards system which currently don't adequately provide for pay pathways for support workers. 

CHAIR: Thank you very much. And thank you both for your statements and to the evidence you have given in the panel. We greatly appreciate your assistance. 

<THE WITNESSES WITHDREW

MS EASTMAN: Thank you, Commissioners. Could I just tender the material? 

CHAIR: Yes.

MS EASTMAN: So if you could mark Mr McFarland's statement Exhibit 32 3. 

CHAIR: Which one was that?

MS EASTMAN: Mr McFarland. 

CHAIR: Yes.

<EXHIBIT 32-3 STATEMENT OF ANGUS McFARLAND

MS EASTMAN: And there's an accompanying document, which is a submission to the Royal Commission from the ASU. If the accompanying document could be marked 32 3.1. 

CHAIR: Yes. Both of those documents will be admitted into evidence and given the markings Ms Eastman has indicate. 

<EXHIBIT 32-3.1 SUBMISSION BY THE AUSTRALIAN SERVICES UNION 

MS EASTMAN: And Dr Macdonald's statement, if you could mark that Exhibit 32 4. 

CHAIR: Yes. 

<EXHIBIT 32-4 STATEMENT OF DR FIONA MACDONALD

MS EASTMAN: And there are a number of documents, including Dr Macdonald's CV and some publications. If they could be marked 32 4.1 through to 32 4.3. 

CHAIR: Yes. The documents identified by Ms Eastman will also be admitted into evidence and given the markings she has indicated. 

<EXHIBITS 32-4.1 THROUGH TO 32-4.3 ATTACHMENTS TO FIONA MACDONALD’S STATEMENT

MS EASTMAN: And if we could adjourn now, say, for 10 minutes. 

CHAIR: 10 minutes. We will resume at 12.15. 

<ADJOURNED 12:04 PM

<RESUMED 12:21 PM 

CHAIR: Yes, Ms Eastman. 

MS EASTMAN: Thank you, Commissioners. Our next witness is Mr Daniel Stubbs, I think often better known as Dan Stubbs, and he is the Victorian Disability Worker Commissioner. And, Commissioners, you will be aware that Mr Stubbs has provided to the Royal Commission a very detailed statement. So I think we just need to take your oath or affirmation. I don't think that's occurred yet. 

CHAIR: Mr Stubbs, thank you for your very detailed 59 page statement. It is extremely interesting. You can take the former judge out of the Constitution, but you can't take the Constitution out of the former judge. So I will be coming back to the Constitution a little later. But thank you very much for coming to the Royal Commission. Thank you for your statement. If you would be good enough to follow the instructions of my associate, who is situated opposite to you, she will administer – I think it is the affirmation to you. 

MR STUBBS: Thank you, Chair.

<DANIEL STUBBS, AFFIRMED 

CHAIR: Thank you, Mr Stubbs. I will now ask Ms Eastman to ask you some questions. 

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: Thank you. Mr Stubbs, you have got a copy – sorry, you don't have a copy of your statement with you, but you have checked your statement and there's one correction that you want to make to the statement. So can I deal with that. 

MR STUBBS: Yes, that's correct. Paragraph 206, yes. 

MS EASTMAN: So paragraph 206. There's an internal reference and on the third line, at the end of the line, where it says: 

This reform is described at paragraph 127. 

Then that should now read:

This reform is described at paragraph 128. 

So with that correction, are the contents of the statement true? 

MR STUBBS: Yes. 

MS EASTMAN: So I want to start just with people who may not know you and a little bit of your background. You were appointed the inaugural Victorian Disability Worker Commissioner in September 2019 by the Victorian Governor in Council. But before that appointment, you were the CEO of the Inner Melbourne Community Legal – was it Community Legal Centre? 

MR STUBBS: Yes. 

MS EASTMAN: And you worked extensively in the community sector as a lawyer and then more recently as a leader, but you have also worked in developing countries. You've looked at research and you've worked on programs concerning disability and also assisting the development of international and national peak bodies for people with disability. Is that right? 

MR STUBBS: Yes, that's correct. 

MS EASTMAN: And in terms of your formal qualifications, you hold a Bachelor of Laws and Bachelor of Commerce with Honours, and you also Graduate Diplomas in Development Economics and Legal Practice. Is that right? 

MR STUBBS: That's correct. 

MS EASTMAN: And you have told us that you are a person who lives with disability and have a sight impairment. 

MR STUBBS: Yes, that's correct, Ms Eastman. 

MS EASTMAN: So I want to ask you about the experience as the first Victorian Disability Worker Commissioner and what you have observed over the time that you've held this role. But before we get to that, we probably need to lay some groundwork in terms of the Disability Worker Regulation Scheme in Victoria, how it came about, how it works and what it does before we get into some of your reflections. Now, I know you've dealt with this in some detail in the – in the written statement, but if I can start with understanding how Victoria came to have this scheme and what was it about Victoria that led to introducing the scheme. Are we right in understanding that there was a number of inquiries into the provision of disability services and, out of those inquiries, came a number of recommendations for reform, and among those recommendations for reform was to set up something like a commission but a commission that would oversee the disability workforce in Victoria? Is there anything you want to sort of say in relation to how and why the scheme was established? 

MR STUBBS: The main inquiry was a parliamentary inquiry – a Victorian parliamentary inquiry that recommended the establishment of this commission – or the Victorian Disability Worker Commissioner, and another inquiry that also informed that was an Ombudsman's inquiry at around that time. Then there was a range of processes, such as consultation by government, et cetera. 

MS EASTMAN: And when the scheme was established, it required legislation. And in 2017, the Victorian Government consulted to design and to identify the features of what would be a registration and accreditation scheme. And the result of that consultation was the Disability Service Safeguards Bill 2018. It was introduced into the Parliament in 2018 and passed into law in August 2018. But the scheme itself did not commence until 1 July 2020. Is that right? 

MR STUBBS: That's correct. 

MS EASTMAN: And the purpose of the scheme is, as you say in your statement, to achieve – it seeks to achieve the promotion of quality, safety and responsiveness, together with longevity, in the disability workforce in Victoria. And to achieve those objectives, the scheme provides for the registration of qualified and suitable disability workers and disability students. It sets standards of registration and accreditation. It seeks to strengthen the safeguards for people with disability who access disability services. It facilitates access by persons with a disability to information and services provided by the disability workforce. And then there's a number of other measures that are all directed at improving the standards to achieve quality, safety, responsiveness and longevity. So a broad summary of section 6 of the Act. 

MR STUBBS: Yes, that's exactly right. 

MS EASTMAN: There are some guiding principles that operate with the Act, and they are set out in section 7(1) of the Act. And they are described in this way: that the rights – that the guiding principles are based on: people with disability in the provision of disability services should have the same rights as other members of the community, and those rights should be respected for their human worth, and people with disability be treated with dignity as individuals. People with disability have a right to live free from abuse, neglect and exploitation. 

They have a right to realise their individual capacity for physical, social and emotional and intellectual development; choice and control over their own lives; access to information; and communicate in a manner appropriate to their needs. And then there is provisions around children, but a right to choose disability workers with the value, skills and qualifications that meet their need and to access services which support their quality of life. So they are the guiding principles. Do you consider those guiding principles to reflect any of the rights in the Convention on the Rights of Persons With Disabilities? 

MR STUBBS: Yes, very much so, Ms Eastman. I think they are in line with some of the – in my view, some of the key provisions of the Convention on the Rights of People with Disability with regard to – well, one, things like safety and freedom from abuse and neglect, as well as other provisions around providing information to people with disabilities, and also around supporting full access to community, which are all in the Convention. 

MS EASTMAN: Does the Disability Services Safeguards Act refer specifically to the CRPD? 

MR STUBBS: No, I don't believe it does. 

MS EASTMAN: And do you know whether, in the consultations and the approach to establishing the scheme, to meet the objectives that we have just spoken about and to operate by these guiding principles, was informed in any way by the CRPD? 

MR STUBBS: Not to my knowledge. But, of course, that was before my engagement. 

MS EASTMAN: And we heard yesterday from a service provider operating in Victoria when talking about human rights that the Victorian Charter of Rights and Responsibilities is also an instrument that the service provider had regard to. So does the Victorian Charter of Rights and Responsibilities have any bearing on the functions that you discharge and/or the way in which the Act operates? 

MR STUBBS: Yes, very much so. We take into account the provisions of the Charter, often with respect to how we deal with complaints, how we take a person centred approach and how we deal with workers who we are taking action against, which I'm happy to talk about later. 

MS EASTMAN: All right. So I want to now turn to the way in which the scheme is administered. So it's established by the legislation, and there are three key parts to it. There is the Commission, which you have described in paragraph 18 of the statement. So the Commission is an independent statutory body. It supports the board and the Commissioner in dealing with complaints and notifications about disability workers, and we will talk more about the complaints and the registration scheme in a moment. So there's the Commission. Then in addition to the Commission, there is your role as Commissioner. And you have the following statutory functions. You also have functions in relation to complaints, but you have a function of issuing against unregistered disability workers orders which either on an interim – as interim prohibition orders or final prohibition orders that might arise following an investigation of the Commission, and you can issue public statements in relation to unregistered disability workers, and you have a range of functions to ensure the good orderly working under the Act. Is that right? 

MR STUBBS: Yes, that's correct. 

MS EASTMAN: There is also – the third element is the board, and the board registers and regulates registered workers. And it has a range of functions. Could I broadly describe them as similar functions to what we might see in professional registration arrangements, for example, like the National Health Practitioners Regulations. So, essentially, you are really looking at a scheme that sets standards and then has mechanisms of holding the person who has to meet those standards to account. Is that – I'm trying to summarise that very broadly. 

MR STUBBS: Yes, that's a fair observation. 

MS EASTMAN: So part of the model is to facilitate the making of complaints and investigations, but the functions of the board is also very much focused on professionalising the way in which disability support workers might operate in Victoria by drawing on some of the regulatory schemes that we know have worked to regulate, for example, health professionals. Would that be a fair summary? 

MR STUBBS: Yes, it would be. 

MS EASTMAN: So I want to now get to how the scheme works and to whom the scheme applies. So when I have used the expression "support worker" or "disability support worker", what does that mean for the legislation that you have responsibility for? 

MR STUBBS: So a registered disability support worker is someone who undertakes a range of different types of disability work, and it can take many forms. But it is about providing direct service to people with disabilities and – but it's not a practitioner, which I can come back to. 

MS EASTMAN: So that's a registered person, but is there a difference in an unregistered disability support worker and a registered disability support worker in terms of the nature of the work that they do or where they provide supports and their labour? 

MR STUBBS: No. So the registered disability worker is someone who has chosen to voluntarily register under the scheme. 

COMMISSIONER BENNETT: So  

CHAIR: Sorry. The key feature of this is that registration is voluntary. 

MR STUBBS: Correct. 

CHAIR: No disability support worker is required to register. 

MR STUBBS: That's correct. 

CHAIR: Why does someone register? 

MR STUBBS: Someone registers with the scheme because they want to show that they meet certain standards. They want to illustrate that they are dedicated to working in this sector. They have come to the realisation that it somehow assists them, we believe, to illustrate their qualifications, the fact that they passed relevant screenings, such as police check, speak or otherwise communicate in English, can also show they speak other languages. 

CHAIR: Okay. Thank you. Yes. Thank you. 

MS EASTMAN: With respect to registered disability support workers, how many people have taken up the voluntary option of registering so far, do you know? 

MR STUBBS: Just over 500 people have chosen to register. 

MS EASTMAN: And do you have a sense of the number of support workers who might have not opted into registration and are described, for the legislation, as unregistered? 

MR STUBBS: There would be many thousands. I think the Royal Commission would be aware that it's very hard to know the exact number of numbers of disability workers in the sector, but it would be well over 100,000 workers in Victoria who are unregistered disability workers at this stage. 

MS EASTMAN: And the Chair has asked you some questions that I was going to come to about the benefits of registration or why. But before we get to that, can I ask you about what are the consequences of registering. It's the case, isn't it, that if you register, you voluntarily agree to take on obligations to meet the Code of Conduct standard? Is that right? 

MR STUBBS: Not quite right, because we implement the Code of Conduct for all unregistered workers. That's part of the legislation. The – as a regulation, the Code of Conduct has been agreed – been identified as the Code of Conduct for all – all unregistered workers in the sector, and the board has also introduced the Code of Conduct for registered workers to comply with as well. 

MS EASTMAN: So I take being registered or unregistered doesn't mean that you have a separate Code of Conduct or standards you meet. That applies across the board regardless of registration. Is that right? 

MR STUBBS: The Code of Conduct applies across the board, and then there are other standards you are signing up to if you become a registered worker. 

MS EASTMAN: So what additional obligations does a support worker take on or accept if they become registered? 

MR STUBBS: We undertake a national police check. That's – that's one basic requirement. We also have a – the board this year has introduced a continuing professional development standard, which I think you have already heard a little bit about today, and that requires 10 hours of training each year. There's also the requirement to indicate that you speak or otherwise communicate in English, and we also publish what other languages people identify that they speak. 

MS EASTMAN: All right. Now, with respect to the Code of Conduct, we know that there is an NDIS Code of Conduct. Is the Victorian Code of Conduct the same as the NDIS Code of Conduct? 

MR STUBBS: Yes, it is. 

MS EASTMAN: And what was the reason to have a consistent approach on Code of Conduct between the Victorian and the NDIS Code of Conduct? Was there any consultation or consideration about whether Victoria might aim for higher standards than the NDIS Code of Conduct? 

MR STUBBS: When adopting that Code of Conduct as the code of conduct under the legislation, the government did undertake consultation, including with the NDIS Commission, as well as with the sector – the disability sector in Victoria. And it was widely recognised that it would be most beneficial to have a consistent Code of Conduct providing that minimum standard right across the sector in Victoria, rather than having a different – even if a higher standard was chosen, a different Code of Conduct would not have been as helpful or useful as a regulatory tool than being consistent right across the disability sector. 

MS EASTMAN: And if a person working – a support worker is alleged to have contravened the Disability Service Safeguards Code of Conduct, can any person make a complaint about the disability worker's conduct? 

MR STUBBS: Yes, anyone can make a complaint to us about a contravention of the Code of Conduct  yes.

MS EASTMAN: If a complaint is made, are there any formalities that have to be met in making a complaint? How does any person make a complaint? 

MR STUBBS: We receive complaints via a range of communication, and we tend to seek to find out what the best way to communicate that complaint is. Sometimes it's verbal, sometimes it's partly verbal, partly written. And so there's no direct – there's no absolute formality, including – we can take them anonymously. It's not a preference, but there's a range of ways we can take complaints. And that's all part of seeking to take a person centred process. 

MS EASTMAN: Is the way in which a person can make a complaint – was that designed with and by people with disability to say, "This is the way we feel comfortable in making a complaint or how we could go about making a complaint?” So there's two aspects to that, one being able to make a complaint and then the formalities in doing so. Was there consultation and co design with people with disability about that? 

MR STUBBS: I'm not aware of consultation about that before my time. After I commenced in the role, I undertook to speak to a wide range of disabled persons' organisations and sought to understand what – what would be most beneficial to people with disabilities and also to their families and others who may make a complaint. And myself and the staff of the Commission worked hard to find ways to be flexible to take a complaint in whatever way it could come. If I could just add, Ms Eastman, I'm aware that, you know, it's the most difficult thing a person with a disability can ever do. 

MS EASTMAN: Is to make a complaint against a person who provides them day to day support – 

MR STUBBS: That's right. 

MS EASTMAN: – and assistance. 

MR STUBBS: Yes.

MS EASTMAN: Is the process of making a complaint confidential? 

MR STUBBS: Yes, it is, until – until the complainant allows us to do – do otherwise. For example, one step in a process can – will often be providing the details of the complaint to the worker. 

MS EASTMAN: Well, you would have to do that once you undertake an investigation but also to build in an element as a public body on procedural fairness. Is that right? 

MR STUBBS: That's right, yes. So we are constantly weighing up those different rights to privacy versus procedural fairness, natural justice, et cetera. So that's why if someone wants to retain that anonymity, that can limit our ability to take forward a matter. 

MS EASTMAN: One of the challenges in any system setting up complaints which require the victim to initiate action and the victim to have the carriage of the complaint – and by that I mean the willingness to participate in a process – is that it puts a very heavy burden on a person to be the complainant to initiate that process. Would you agree? 

MR STUBBS: Yes, I would agree. 

MS EASTMAN: And you have provision in the legislation to undertake own motion investigations. Is that right? 

MR STUBBS: Yes. 

MS EASTMAN: And to what extent does that own motion power enable you, based on information that you might see, to be the person who initiates the complaint, in effect standing in the shoes of a victim? 

MR STUBBS: Sorry, what's the exact question? Sorry. 

MS EASTMAN: So what – with the own motion power that you have, if you exercise that power, can you step into the shoes of the person with disability who may have made that complaint but is very fearful that they might be victimised or their supports might be withdrawn? Can you step in and make that complaint on their behalf or exercise that through your own motion power? 

MR STUBBS: Yes, I can. 

MS EASTMAN: And do you have any published guidelines as to how you exercise that own motion power? So if a person – and it might even be a family member or a neighbour might want to make a complaint but not be identified and not be the person who has to have, in a sense, the carriage of the complaint. Do you have guidelines published as to when and how you exercise your own motion power? 

MR STUBBS: No, I don't believe we have published that kind of information. No. 

MS EASTMAN: Is there anything that would help the public know when and how you would exercise an own motion power at the moment? 

MR STUBBS: I'm not sure if publishing information to the community with words like "own motion powers" would necessarily be that informative. I think receiving complaints and encouraging people to tell us when something is wrong, and if they are unwilling to take it forward, then us being able to deal with that in different ways is, I believe, the way forward there. And I'm sure we will get to this, but a lot of our actions are, of course, also taken from not complaints but notifications. 

MS EASTMAN: Notifications are different to complaints because there are some matters that have to be reported, and they are the form of mandatory notifications. That's what you are referring to. What sort of things have been mandatory notifications under the Victorian scheme? 

MR STUBBS: It's been a wide range of types of matters, but we have received mandatory notifications about – in – in the most serious cases, abuse and sexual abuse, but also where people have been – maybe experienced extreme disrespect and taken choice and control away from them. And so it's – it does have that higher threshold of a person with disability being at risk of harm. So it is – it is limited, whereas complaints can have a wider range of type of issues. 

MS EASTMAN: So with respect to both complaints and notifications, is the process at a very general level something like this: that the notification or complaint is received, the Commission then may conduct an investigation into the complaint or notification, the outcome of an investigation may include the opportunity for conciliation between the relevant parties, an outcome may also include the prohibition orders being made? And I think you say in your statement you have made one prohibition order. So that's some of the pathways, but – 

MR STUBBS: Yes. 

MS EASTMAN: – can we assume also that some of the investigations might not lead to any further action? Would that be the case in some complaints or notifications? 

MR STUBBS: May not lead to the most – the most serious action in terms of prohibition order. Yes, that's correct. 

MS EASTMAN: And would there be some complaints and notifications when you receive the information, there's really not much that you can do about the subject matter of the complaint or notification and, in a sense, the person reaches a dead end? 

MR STUBBS: I think that – that would be the case in some instances. Like any complaints body, we will often undertake a range of – a range of activities with the complainant that might involve assisting them to work with another complaints body. But we may also what we call counsel a worker about how they have breached the Code of Conduct. That's quite a common action we take to ensure the disability worker understands their obligations under the Code of Conduct, for example. 

MS EASTMAN: When you talk about counselling, is there an opportunity to provide some guidance to a support worker about the way in which they may practice or conduct themselves in a particular workplace? 

MR STUBBS: Yes. So it can be done either by talking to that worker or by providing that counselling in writing or both. Sometimes we do both, to follow up in writing to, as I say, explain their obligation under the Code of Conduct and how their conduct has, let's say, fallen short of the requirements under the Code. 

MS EASTMAN: And part of the outcomes might be that counselling, but is there part of the outcomes that might lead to ongoing education or suggestions, for example, that the support worker have a particular mentor or a supervisor? I'm just drawing on some of the measures often used in the health regulation area. 

MR STUBBS: So if a worker is a registered worker, the board has that power to require both, you know, training and further supervision, et cetera. If a worker is an unregistered worker, we don't really have that power to require and particularly sort of monitor whether someone undertakes that kind of ongoing supervision, for example. 

MS EASTMAN: Right. So under the scheme, in terms of what the Commission can do in response to investigating, conciliating notifications and complaints, at what point do those complaints and notifications then go to the board and what action does the board take? 

MR STUBBS: So first of all, we haven't had a complaint about a registered worker that will go to a board – go to the board as yet. But the Commission staff will receive a complaint or notification – would receive a complaint or notification about a registered board – registered disability worker and make an assessment about maybe urgency or risk, and that will affect whether perhaps immediate action needs to be taken, and we would take that obviously to the board immediately, very quickly. But in most instances, it would be presented to the board at its next board meeting, within a matter of weeks, and then options will be set out for the board. 

MS EASTMAN: All right. In terms of the numbers of complaints and notifications to date, you have told us in the statement that between 1 July 2022 and 31 December 2022, the Commission received 40 notifications. And the regulatory action in relation to those notifications was 16 counselling, two referrals and 15 decisions to take no further action. And – 

CHAIR: Sorry, what paragraph was that?

MS EASTMAN: This is paragraph 102. 

CHAIR: Thank you. 

MS EASTMAN: So that's just a snapshot of the six month period, and you have given us some other figures. In terms of the approach that you are taking at this very early stage of the life of the Victorian Commission, is the approach that you want to take by counselling one where you really are seeking to support the disability support worker to remain in the industry but to develop further skills or to assist them in understanding some of the things that have gone wrong and what they could do to improve? I'm just trying to get into the detail of what the counselling is intended to achieve. 

MR STUBBS: It is mostly about taking an educational – an educative approach whenever we can, and I think we are at a point in time when we are seeking to – I mean, the whole disability community seeking to have – develop a more professionalised disability sector and disability worker community. And so assisting workers to understand, first of all, what the Commission's role is and that workers have a role in upholding the Code of Conduct is very much where we are at the moment, the approach we are taking in these first few years. 

MS EASTMAN: For the workers who may be employees of disability service providers – and some of them might be the larger providers, some of them might be mid tier – the workers have also got their employment obligations to their employer. Does any conflict arise in terms of the way in which the service providers as employers might respond to an incident and how your Commission deals with a complaint about a worker, which I assume might occur in the workplace of a disability provider? How do you navigate what might be a number of different ways of responding to an incident, a complaint or a notification? 

MR STUBBS: Most commonly, we would receive notifications from the employer themselves, but we do receive notifications from other disability workers. We – when we receive a notification from another disability worker, we will consult with them about who else we can discuss that with, and usually they will be quite open to us telling the organisation and talking to them about it. Often that matter will have already been notified within the organisation. And it helps – I think it helps us and them to know what we are each doing. And so to my knowledge, it hasn't arisen that we – we have a sort of a conflict with the employer body. Now, I don't know always why a worker might come to us and not necessarily their employer. Yes, there are many – as you have heard, there are many different workplaces and workplace cultures around the sector where maybe complaints are more supported than not. I shouldn't speculate.

MS EASTMAN: In terms of the types of complaints and notifications that might be made, it's the case, isn't it, that there are also other regulatory bodies that might have responsibility to address the subject matter of the complaint or notification? That might be the police, for example. 

MR STUBBS: Yes. 

MS EASTMAN: It could be the NDIS Quality and Safeguards Commissioner. 

MR STUBBS: Yes. 

MS EASTMAN: It might be matters that come to the attention of the Public Advocate. 

MR STUBBS: Yes. 

MS EASTMAN: The Ombudsman. How does the Commission navigate all of these different regulatory arrangements? Do you have memoranda of understanding with any organisations? Do you have particular statutory functions that allow you to share information? 

MR STUBBS: Yes. So we have agreements with a number of those bodies – in fact, all of those bodies. The – and the working relationships are good. We have a good working relationship with the police when we have to deal with the most serious matters, I'm pleased to advise. We – we have an agreement with the NDIS Commission, but there is also reference in our Act about we are required to share information with the NDIS Commission when there's a matter that comes in that's – that's funded by the NDIS. So we will regularly provide information about matters that come into the NDIS Commission as a matter of course. 

MS EASTMAN: In addition to information sharing, do you have referral schemes that if the subject matter of a complaint or notification is something that you look at that and say, "That's really a matter for the police"? Do you have a referral scheme to say, "We cannot be investigating criminal conduct," for example? 

MR STUBBS: We generally will talk to the police and understand what action they are going to take. And so – and in many ways, we are set up to fill the gaps. And so my approach is very much not – not to be doing work in maybe areas where other regulators are involved. There's, unfortunately, plenty of work to do, and we don't need all of us overlapping. So we will stay aware of what police are doing, and they will keep us informed and sometimes provide some – often – almost always provide information to us, perhaps even mention our role in bail requirements, for example. But we will wait until that's done. But, you know, sometimes police will initiate an action – a criminal action and then not proceed. So we do want to make sure that if – if the police suddenly don't proceed, we want to then commence our own action to investigate. We, of course, have a different threshold than the criminal threshold, the police. 

MS EASTMAN: Yesterday, the Royal Commission heard from a panel of advocates. None of the advocates who gave evidence yesterday are based in Victoria other than VALID, and they spoke about getting access to – the difficulty of getting access to very closed environments, be it within a family or be it within group homes. Is any part of your work directed to making sure that people who are in segregated or closed settings – they might be in group homes, institutions, the SRSs, in prison settings, for example. Do you have a sort of active approach in working with advocates to get into those spaces? 

MR STUBBS: We certainly have an active and continue to develop relationships with advocacy workers. I think – I think advocacy workers do some of the most important work in our sector, particularly for a complaints body like us. Someone who is vulnerable or isolated is unlikely to make a complaint directly without – to us without some support from someone who is either an informal or formal advocate. Getting to the people who you talk about, the most isolated or vulnerable people, is, I think – I think, some of the hardest work and some of the most important work. And so we are constantly challenging ourselves about how we best get to them, either with advocates – and I know the advocacy community find that difficult too. So it's a – it is a constant challenge. All I can say is that. 

MS EASTMAN: So what sort of practical steps have you taken to address those challenges in the Commission? 

MR STUBBS: At this stage, it's partly about talking to other regulators, like, say, the Office of the Public Advocate who has a visiting volunteer – 

MS EASTMAN: A community visit. 

MR STUBBS: Community visits, thank you. 

MS EASTMAN: And I think you refer to the community visitors as a source of complaint. Paragraph 169. 

MR STUBBS: And developing relationships with other providers, such as – you know, State Government provides disability services more in the forensic setting, and making sure they and their staff are aware of us. Much of that work has been hard to do, of course, in the first two years of this Commission – the Victorian Disability Worker Commission's life. We had a pandemic which made everything harder, which I don't need to tell the Royal Commission, I'm sure. 

CHAIR: Ms Eastman, I see the time. How long are you likely to be with Mr Stubbs?

MS EASTMAN: I've got five questions. So I want to now come to your reflections on the experience in Victoria to a national approach. And in terms of thinking about whether the Victorian model could be a model for a national registration scheme, would the first thing to be done is to understand very clearly what the benefits of the scheme are for people with disability, for support workers, for service providers and other existing regulatory bodies? 

MR STUBBS: Yes, I think that would be the first – the first point of order to – the first sort of action to, I think, be very clear in communications about the – if you like, the value proposition of becoming a registered worker. 

MS EASTMAN: And do you know if any work has been done to either identify, research or evaluate the benefits of registration under the Victorian scheme for people with disability, support workers, service provides or other regulatory bodies? 

MR STUBBS: Yes, we have done some of that work. Yes. 

MS EASTMAN: Have you published that work? 

MR STUBBS: No, we are still – that's – that's now informing our plans to change what we are seeing as good and high level and growing level of awareness into action of registering, and it's one of the challenges of a voluntary scheme. 

MS EASTMAN: My almost last question is in terms of using, say, the Victorian model as a template for a national model, do you have a view on what would be required in terms of data collection across a national system where registered and unregistered workers might be moving between federally regulated support activities and state based report activities? Is there an issue around collecting data? 

MR STUBBS: I'm not sure, Ms Eastman. That's not something I have turned my mind to. I think there is many challenges, and understanding the full breadth of the workforce is one of the challenges. It's an incredibly diverse workforce when you think of all the different work that people do. But I think that – that's one way of coming at it. The other way of coming at it, I suppose, if we were to go down the route of having a national scheme, I think it would be worth engaging on whether, over time, as a staged approach, we make it a mandatory registration scheme with the gradual introduction of standards that we would see it – that we are seeing at a state level in our scheme. 

MS EASTMAN: My final question is you say in the statement that the Department of Family, Fairness and Housing is committed to an independent three year review of the scheme, which you anticipate will take place in late 2024. Would it be the case that until we reach 2024 and that evaluation and review process has been undertaken, that it might be premature to be making any assumptions about the Victorian scheme being able to transplant into a model at a national level? 

MR STUBBS: I'm not sure if that's entirely true. I think the three year review is a good point in time, but we are collecting data constantly and seeking to understand new ways of approaching the registration scheme and also looking at how best we operate with respect to the high risk areas we talked about before where maybe there would be greater benefits for requirement for registration, for example. So certainly we expect that we will know a lot by 2024, but I don't think you would need to wait until then. 

MS EASTMAN: Thank you, Mr Stubbs, for the extremely comprehensive statement. We have only really touched the surface of the detail in the statement. The Commissioners may have some questions. Thank you. 

CHAIR: Yes. Thank you very much. Commissioner Bennett. 

COMMISSIONER BENNETT: Thank you for your evidence. Just one quick question. Are you aware of any service providers who have actively encouraged their workers to register? 

MR STUBBS: Yes, we have had some service providers who have done that. Yes. And we are now looking at some strategies to work more closely with those service providers in particular to, I think, seek them – seek their support in the steps required to support – assist workers to actually undertake registration. So yes. 

COMMISSIONER BENNETT: Would you see that as a reflection of a better culture from those providers who are encouraging their workers to register? 

MR STUBBS: Yes, I think some providers realise there is a benefit to their clients and to their workers and to the whole organisation in terms of retaining and developing good quality staff. So yes. 

COMMISSIONER BENNETT: Thank you. 

CHAIR: Commissioner McEwin? 

COMMISSIONER McEWIN: No. Thank you. 

CHAIR: You distinguish in your documentation, that is, the agency, between notifications and complaints. What's the difference? 

MR STUBBS: The notifications are – we have a – it's a mandatory notification, and there are four criteria for notification where a worker needs to be putting a person with disability at risk of harm due to things like sexual misconduct, intoxication and not meeting accepted standards for that workforce. So it's – they are fairly specific for criteria of conduct and that risk of harm to the service user, whereas the complaint side of things is much broader and is generally done with reference to any aspect of the Code of Conduct, which can be much more about issues relating to quality and respect and that kind of thing. 

CHAIR: But both would relate to – at least as far as allegations are concerned, to departures or alleged departures from appropriate standards. 

MR STUBBS: Sorry, I didn't – I didn't hear the beginning of your question, sorry, Chair. 

CHAIR: Both complaints and notifications, according to the way they are classified, relate, as far as allegations are concerned, to departures from appropriate standards of care. 

MR STUBBS: That's correct, yes. Yes. 

CHAIR: The annual report shows that of the 46 complaints in 2021 2022, 20 – there were 46 complaints. 43 were closed, 20 involved counselling and 18 no further action. What would be the normal reason for no further action? 

MR STUBBS: Usually, we are unable to substantiate the matter. There is usually a number of inquiries made of the different people involved and, unfortunately, often it's as a result of the fact that there's – there are a lack of witnesses. So although we have to close and have – take no further action, the matter – we retain that matter as a record on our system. And if we do receive another complaint, we can re open it. But particularly during long periods of lockdown in Victoria, we were unable to necessarily talk to all the people we wished to. We often were, but it was challenging. And so it's often a lack of information, unfortunately. 

CHAIR: Yes. Well, it is obviously a difficult time in which a new organisation should operate. Just one more thing. I won't go into the Constitutional niceties and the interaction between state and Commonwealth laws. 

MR STUBBS: Thank you. 

CHAIR: But no doubt they are very much in the forefront of your mind. The idea is that this should be a one stop shop for complaints, isn't it? 

MR STUBBS: Yes, I – I believe if people – if people only have one place to go, one, they are more likely to go there. Because if people have to think about where they need to go to lodge a complaint, that's one more barrier to them actually making that complaint. 

CHAIR: I understand that. 

MR STUBBS: Yes.

CHAIR: But one of the consequences of the interaction between the NDIS and your agency is that people with complaints about NDIS support workers can go either to the NDIS Commission or they can go to your agency. And then if they go to your agency, you then have the duty to refer the matter to the Commission. Have I got that right? 

MR STUBBS: That's correct, yes. 

CHAIR: So it's a little confusing, isn't it, to have a state and Commonwealth agency dealing with the same complaint, or potentially, according to the same criteria, that is to say, the Code of Conduct? 

MR STUBBS: Yes, it – I have no doubt it is. Happy to comment further. 

CHAIR: Sorry? 

MR STUBBS: I'm happy to comment further, Chair. 

CHAIR: Yes, please do. 

MR STUBBS: So, yes, I have no doubt it is more confusing, and I don't take any joy in the fact that we provide maybe some more complexity in the State of Victoria. As you say, we do provide – we do provide that data to the NDIS Commission. There are also many thousands of workers who we regulate who aren't covered by the NDIS, who we – we are the only regulator for in Victoria. So that's also important. And I think you can – well, the system can be complicated by overlap. But I think also if we carve out certain sectors, we risk creating gaps in the complaint system, which I think would be worse. I think we have become – we at the Commission and other regulatory agencies, the way we work, we have become very good at working well with them to provide increasingly timely responses and increasingly timely information sharing to make it as easy as possible for the complainant. 

CHAIR: Yes, I don't underestimate the difficulties. And, of course, we have seen that through the workings of the APTOS and the relationship between responsibilities under the NDIS for the Commonwealth and the responsibilities of state and territories where the NDIS ends. And as you say, it's not only the NDIS that provides services to people with disability. All right. Well, thank you very much for your evidence. Thank you for the detailed statement. Thank you for your elaboration on that today. We appreciate your assistance, Mr Stubbs. 

MR STUBBS: Thank you. 

MS EASTMAN: Chair, may I tender into evidence Mr Stubbs' statement. Could you mark that Exhibit 32 5. 

CHAIR: Yes. 

<EXHIBIT 32 5 STATEMENT OF DANIEL STUBBS

MS EASTMAN: And there are a number of documents annexed to statement. I won't read them all out now, but if they could be marked 32 5.1 through to 32 5.10. 

CHAIR: Yes. Mr Stubbs' statement and the supporting documentation will be admitted into evidence and given the markings that Ms Eastman has indicated. 

<EXHIBITS 32 5.1 THROUGH TO 32.5.10 SUPPORTING DOCUMENTATION ANNEXED TO DANIEL STUBBS' STATEMENT 

MS EASTMAN: Thank you. 

<THE WITNESS WITHDREW

CHAIR: Thank you. 

MS EASTMAN: If we could adjourn till 20 past 2, please. 

CHAIR: Yes. It is now just before 20 past 1. We will adjourn until 2.20. Thank you. 

<ADJOURNED 1:18 PM 

<RESUMED 2:24 PM 

CHAIR: Yes, Ms Eastman. 

MS EASTMAN: Thank you, Chair. So we turn to another panel of representatives of service providers, and the focus of the panel this afternoon, which will be the first of two panels, looking at workforce issues from the perspective of the service providers. So we have three representatives, and I will introduce them in due course, from BET Group, LiveBetter and from Minda. And I think they have all – you have done your oaths and affirmations already. 

CHAIR: Before we start, I would like to thank you each for coming to the Royal Commission and for joining the panel this afternoon. We very much appreciate your assistance and look forward to your evidence. I will ask Ms Eastman now to ask you some questions. Thank you very much. 

<EMILY KORIR, CALLED

<NATALIE FORSYTH-STOCK, CALLED

<DAVID PANTER, CALLED

<EXAMINATION BY MS EASTMAN SC

MS EASTMAN: All right. Ms Korir, can I start with you. You are Emily Korir? 

MS KORIR: Yes.

MS EASTMAN: And I might need you just to raise your voice a little bit. You don't have to be too loud, but just enough so we can hear you. So you are the CEO of a service provider called the BET Group. Is that right? 

MS KORIR: Yes, that's correct.

MS EASTMAN: And how long you have held that role? 

MS KORIR: Since 2016. 

MS EASTMAN: And before that, you have also had experience working in the disability sector? 

MS KORIR: Yes. 

MS EASTMAN: And of the way in which the NDIS operates. Is that right? 

MS KORIR: Yes. 

MS EASTMAN: Okay. Now, Ms Natalie Forsyth Stock, can I turn to you. You are the CEO of LiveBetter. 

MS FORSYTH STOCK: That's correct. 

MS EASTMAN: And – I will just grab my notes. So you have had executive experience of over 30 years. 

MS FORSYTH STOCK: Correct. 

MS EASTMAN: And your experience comes from the – may I say, the corporate sector. 

MS FORSYTH STOCK: It does. 

MS EASTMAN: So you have working in banking, in venture capital, private equity, but you have also had some government roles. Is that right? 

MS FORSYTH STOCK: Correct. 

MS EASTMAN: And going from that business and corporate background, you've come to LiveBetter as a disability service provider based in Orange in New South Wales. 

MS FORSYTH STOCK: Correct. We are a disability and general community service provider. 

MS EASTMAN: How long have you held the role of CEO and managing director? 

MS FORSYTH STOCK: Four years. 

MS EASTMAN: Dr Panter, you are from Minda. And we understand that you have only recently taken on the role of the chief executive of Minda as at 24 January – this year or last year? 

DR PANTER: Last year. Just over a year. 

MS EASTMAN: Last year. So – and you also have a very extensive background in health, community and social welfare services in Australia and the UK? 

DR PANTER: Yes, about 43 years’ worth now. 

MS EASTMAN: And you have operated at the chief executive level for more than 26 years. 

DR PANTER: Correct. 

MS EASTMAN: So you come to Minda with bringing a breadth of experience from the UK and within Australia around the provision of disability services. 

DR PANTER: Correct. 

MS EASTMAN: But also that broader health and community service context. 

DR PANTER: That's right. 

MS EASTMAN: All right. So we asked you to join this panel so that we could get some perspectives on workforce issues. And in particular because of where your organisations provide services and the nature of those services, we were keen to have an understanding about what workforce issues arise. Before I start on that, can I ask you, have you followed the work of this Royal Commission? 

MS FORSYTH STOCK: Yes. 

MS EASTMAN: And have you had an opportunity to read the Commissioners' hearing reports that have concerned findings and recommendations in relation to service providers?

MS FORSYTH STOCK: Yes. 

MS EASTMAN: You are all nodding, so I take that as a yes for the transcript. Have you all had an opportunity to read the NDIS QSC's own motion report that was recently released? 

MS FORSYTH STOCK: Yes, the one into supported accommodation. Yes. 

MS EASTMAN: So you have looked at those.

MS FORSYTH STOCK: Yes.

MS EASTMAN: So some of the issues that I want to explore with you today arise from matters arising from the hearing reports of the Commissioners and also that recent work done by the QSC. So I want to start with the composition of your particular workforces. For the BET Group, are we right in understanding that you provide services to 62 clients, and you have 206 workers to support the 62 clients? And for the most part, you provide services in South Australia? Is that right? 

MS KORIR: South Australia, Victoria and now New South Wales. 

MS EASTMAN: So the 62 clients are across the three states? 

MS KORIR: Yes. 

MS EASTMAN: And of the 206 support workers, are they shared across the three states or are they predominantly based in South Australia? 

MS KORIR: Predominantly in South Australia, and Victoria staff are in Victoria. 

MS EASTMAN: Okay. With the Victorian workers, are they registered under the Victorian worker registration scheme, do you know? 

MS KORIR: No. After hearing this morning, it's of note I wrote to People and Culture to confirm that, because that's something that we would like to support for sure. 

MS EASTMAN: All right. So for LiveBetter, you have told the Royal Commission that you have 1,420 clients. 

MS FORSYTH STOCK: Yes. 

MS EASTMAN: And a workforce of 1,365 support workers. But I think that also might include some of the administrative staff as well. 

MS FORSYTH STOCK: And that also includes some of our aged care workers as well. 

MS EASTMAN: Okay. And for the most part, where are you providing your services and where do your clients reside? 

MS FORSYTH STOCK: Mostly in regional New South Wales. Mostly in the Central West, but our geographic footprint is from Lithgow at the base of the Blue Mountains, out to Broken Hill, a little bit down in the Murrumbidgee, and Central Queensland and northern New South Wales. So quite geographically diverse. 

MS EASTMAN: So you extend into the sort of border areas of New South Wales? 

MS FORSYTH STOCK: It's sort of the mid north coast of New South Wales and then we have something in Central Queensland. So not necessarily around the border. 

MS EASTMAN: Okay. And for Minda, you have 1,087 clients and 2,200 support workers. Is that right? 

DR PANTER: 2,200 staff in total. 

MS EASTMAN: That's staff in total. Of the support workers, what's the breakdown? 

DR PANTER: It's – of the – the support workers is just under 1,500, 1494. 

MS EASTMAN: And is all of Minda's services, bar one client in the Northern Territory, all based in South Australia? 

DR PANTER: That's correct, yes. 

MS EASTMAN: Okay. So can I ask you about the profile of your workforce. You've given us the raw numbers, but could you give the Royal Commission a sense of the nature of the workforce. Is it predominantly women? Are they workforces that are predominantly people from culturally and linguistically diverse backgrounds? Are they older workers? Are they people with disability? Do you – I don't think LiveBetter – you said you don't collect some of that data. 

MS FORSYTH STOCK: I do have that data today, though. So – 

MS EASTMAN: We will start with you. 

MS FORSYTH STOCK: Yes. So 63 per cent of our workforce is female. 57 per cent are under 40. Because we operate in regional areas, they are not generally from culturally diverse communities. We have some people with a disability who provide direct support, but only a very small number. 

MS EASTMAN: Right. For the BET Group, I think you have told us that predominantly your employees are people from culturally and linguistically diverse backgrounds, and that's had an impact on employing people who assume that unless they are from a culturally and linguistically diverse background, this isn't a place to work. Is that right? 

MS KORIR: That's right. 

MS EASTMAN: And what about women and the age of the people who work for you? 

MS KORIR: So about 80 per cent women. 

MS EASTMAN: 80 per cent women. 

MS KORIR: Yes. So it's very female led and female staff. And 85 per cent CaLD are very heavy, CaLD heavy. 

MS EASTMAN: And for Minda? 

DR PANTER: So around about – between 55 and 60 per cent identify as female. We also have a fairly large CALD group as well, getting towards about 30 per cent of our staff. 

MS EASTMAN: Right. Do any of your organisations use students, trainees or volunteers?  So  

MS FORSYTH STOCK: Yes, all of the above. We do schools based traineeships. So we take year 11 and year 12 students. We also do trainees – school leaver trainees. And we have volunteers, particularly in our community transport operation. 

MS EASTMAN: Thank you. 

MS KORIR: At BET, we don't use any volunteers. We – for students, we have a collaboration with Torrens University, and we use – we give placements for their – 

MS EASTMAN: For the students. And for Minda? 

DR PANTER: We have a cadet program and are in the process of developing a traineeship with local schools. We do have a – about 200 volunteers, but they are not doing support or care activity. They are doing other activities around the broad range of services that Minda provides. 

MS EASTMAN: Now, if you were in the room earlier today, you may have heard that, in terms of the workforce, many people have more than one employer. For your respective organisations, do the majority of your support workers also have employment with other service providers?

MS FORSYTH STOCK: So our split between casual and permanent would give some indication of that. So I would say 60 per cent are permanent and between – so 40 would be casual. 

MS EASTMAN: And of those casual workers, do you have any knowledge as to whether they work for other service providers? 

MS FORSYTH STOCK: We – yes. We ask for secondary employment declarations. So we do keep that. Not all of them would be working for another service provider. Some of them have diverse jobs. Some of them would be involved in hospitality. Some of them would be – I know one is a professional musician. There's a range of people who work for us. 

MS EASTMAN: And for the BET Group? 

MS KORIR: Yes, definitely. Most of our casual staff work for other organisations, like Minda, and other organisations in South Australia, but we have a second work declaration as well that we collect. 

MS EASTMAN: Do you know the percentage of your workers who work for other organisations? 

MS KORIR: I don't have a percentage, but it's the casual staff mostly maybe. 

MS EASTMAN: How many casuals you do you have as a percentage of the workforce? 

MS KORIR: About – casual – it would be 30 per cent. 

MS EASTMAN: Okay. And with Minda? 

DR PANTER: So of our almost 1,500 support staff, almost two thirds of those, just over 1,000, are part time. 240 odd are permanent full time and the rest, 200 or so, are casual. It's been very interesting for us trying to understand with our part timers and casuals what the factors are for them remaining at that level. Because as we have been in negotiation around our EB, which we might come on to later on, we have been looking to increase the amount of full time staff and have found some real barriers, particularly, for example, the perverse incentive of the salary sacrifice program that many of our staff choose now to work for two or three not for profit employers because the salary sacrifice, which is worth, you know, 15,000 odd tax free to them, is per employment, not for as an individual. 

MS EASTMAN: Right.

DR PANTER: And so each time you are with a different employer, even if you are part time, you are entitled to the full salary sacrifice. And so for many of our staff, they are saying they don't want to consolidate to one employer because they will lose that tax benefit in their salary sacrifice arrangements. 

MS EASTMAN: Do you keep any records in relation to the retention of employees, so the average duration that people work? We heard earlier this morning that there is a relatively high level of attrition in the industry, and I think it will be helpful just to understand why that might be the case. So is there anything in Minda's records that keep that data? 

DR PANTER: Yes. So, I mean, our current retention – the retention rate in the last 12 months has got as – the turnover has got as high as almost 27 per cent. 

MS EASTMAN: In one – in an annual – 

DR PANTER: In a year. 

MS EASTMAN: Okay.

DR PANTER: The – it was, prior to COVID, running at about 15 per cent. What we've seen as we've begun to come out of the COVID period is a lot of our staff who originally have come from overseas wish to return and, therefore, don't have the holidays and have chosen to essentially not continue employment to be able to go back knowing that there's going to be demand for their work when they come back. So we believe that the last 12 months in terms of our retention rate has been inflated because of that factor because, historically, it's around that mid to – sort of 15 to sort of 17 per cent. 

MS EASTMAN: What have been the implications for Minda in terms of service delivery with a 27 per cent rate? 

DR PANTER: I mean, it has been significant, particularly in trying to ensure that we've got consistency of staff that are supporting an individual particular client. However, we have been going through some major change process over the same period to change the model of Supported Independent Living that we are providing following a co design process with our clients and with families and other stakeholders. And so we have been able to consolidate staff and make sure that where we have got gaps, they are in areas of our activity, so our day programs and other types of activities, which their absence has less impact on the quality of service being provided to a client where consistency, particularly of somebody coming into your home, is absolutely critical. 

MS EASTMAN: For the BET Group and LiveBetter, have you got records in terms of retention, attrition, however you might describe it? 

MS FORSYTH STOCK: Yes. So we have quite a large turnover as well. We will be probably closer to the 30 per cent mark. 

MS EASTMAN: Right. In an annual – 

MS FORSYTH STOCK: In an annual period. And there's a number of factors, I think, that have contributed to that, particularly over the last couple of years. We did lose a lot of workers in relation to mandatory vaccination. We probably lost between 50 and 60, some of which chose not to get vaccinated, some of which we had to terminate. So we lost quite a few during that time. We also lost quite a few at the beginning of the pandemic who, probably for their own health reasons, chose not to work. And then we had people who were on JobKeeper who chose to stay on JobKeeper for a period of time. So it's been a higher rate. We tend to lose more people in the first three to six months. 

MS EASTMAN: Right.

MS FORSYTH STOCK: Once they get beyond that, they tend to stay longer. I think that the reality of support work for some people is too much. I think particularly people who are doing personal care, they often think, "It's not really what I thought this was going to be.” So we tend to lose a few in that first period. 

MS EASTMAN: And the BET Group? 

MS KORIR: So for BET, we are around the same, very high turnover rate, about 25 to 27 per cent. But in the 2021 2022 year, was 42 per cent, which was very high. 

MS EASTMAN: 42 per cent. 

MS KORIR: It was very high, but it was really intentional. It's for people that we were not renewing maximum term contracts because either they hadn't finished their training or their performance. So it was planned for us, and we prepared for it before the maximum term contracts came to an end. 

MS EASTMAN: Right. And with respect to your workforces, is there a high union membership rate within the workforce? Do you know that?

DR PANTER: At Minda, we estimate it to be around about 45 to 50 per cent. 

MS EASTMAN: And the other organisations? 

MS FORSYTH STOCK: We don't actually know exactly what the – what it is, but we would anticipate that it's lower than that. 

MS EASTMAN: And BET? 

MS KORIR: About the same with Minda, about 60 per cent. 

MS EASTMAN: 60 per cent of your workers are union members? 

MS KORIR: Yes. 

MS EASTMAN: Okay. I want to turn to recruitment issues, and so I might just sort of focus in on one organisation and ask the others if you want to contribute to it. So maybe I might come to LiveBetter on the recruitment process. So do you have a designated recruitment team within your organisation? 

MS FORSYTH STOCK: Yes, we do. 

MS EASTMAN: And does that team have human resource experience as well as frontline disability support work experience? 

MS FORSYTH STOCK: They have human resource experience. They – I don't believe any of them have been frontline disability support workers. 

MS EASTMAN: And is the process of recruitment one that starts with advertising positions or is it a word of mouth type – 

MS FORSYTH STOCK: Look, it varies. We – because we need a lot of workforce, we use every strategy we possibly can. So we certainly advertise on platforms like Seek, for example. We also have an employee referral scheme where employees can refer people and receive a financial reward. We also go out to schools to try to recruit people. We go to universities. We go as broad as we possibly can. 

MS EASTMAN: And in terms of the selection process, are applicants, say, responding to an online advertisement required to put in written applications or do you have a standardised online process? 

MS FORSYTH STOCK: Generally we are still on the written application process at this stage. 

MS EASTMAN: And do they have to make an application that is referable to a particular criteria that's identified by LiveBetter? 

MS FORSYTH STOCK: So we recruit against the position description, which includes the skills and competencies that we are looking for. 

MS EASTMAN: And does that position description and skills and competency reflect the NDIS Capability Framework?

MS FORSYTH STOCK: It does. It does. And then plus the additional sort of skills that we look for in a broader organisation. 

MS EASTMAN: What are those skills? 

MS FORSYTH STOCK: For things like ability to work in a team, communication skills, comprehension skills, things that you may not necessarily need if you are working one on one on your own, but you definitely need if you are, you know, part of a broader large corporation. 

MS EASTMAN: Do you require any of your candidates at the application stage to undergo any psychometric testing or health testing? 

MS FORSYTH STOCK: We do health testing. So we – 

MS EASTMAN: Sorry, assessment, not testing. 

MS FORSYTH STOCK: Yes. Not at the application phase. Once they are successful, we do have a health screening. 

MS EASTMAN: And in terms of what you prefer in a candidate – the heavens are opening – and the key qualities, what – can you distil down – what are the sort of people you are looking for?

MS FORSYTH STOCK: Look, generally we are looking for people who care about people. I think the values that people hold and the values that they understand which are important for people with a disability is probably the key criteria. 

MS EASTMAN: How do you work that out at a recruitment stage, particularly, for example, if part of your recruitment strategy is to recruit young people finishing school or maybe sort of very early in their working life? 

MS FORSYTH STOCK: It's not an easy thing. 

MS EASTMAN: Yes. So how do you do it? 

MS FORSYTH STOCK: So how we do it is – all you can really do is ask them a series of questions to understand whether they have those values. But it's not easy, and sometimes you get it wrong. 

MS EASTMAN: Can I come to other panel members. Do you want to add anything about your processes?

DR PANTER: Please, thank you. Yes. So going to that very point, for a long time I've held the view that aptitude is as important as the qualifications. I've seen too many people with the right bits of paper who just don't have a love and – an ability to engage. And so what we have instigated to try and overcome that issue is once somebody has got through the paper stage of recruitment, we are then running assessment centres. And in those assessment centres, we use some of our clients who have volunteered so that we can see how people actually interact, help cook a meal, undertake various tasks, to help shape that understanding that we have about the aptitude. Once somebody has got through that phase, we then – the final phase of recruitment in terms of the allocation to a particular client now involves the client and family or other support network, if the client wishes them to be involved, in selecting the person who will actually work directly with them. 

MS EASTMAN: So at what stage do the clients and people with disability and their family enter into the recruitment process? 

DR PANTER: So clients – generally – within that assessment centre. But once somebody has passed the assessment centre, then the allocation to a particular house or a particular service with a particular client now involves the client in that process. So they get to say – and we – you know, you get that sense of how people actually engage. We do the same with our management level in terms of our team leaders where, again, we will have – individuals from the cluster of clients being serviced by a team, the manager of that team will have representatives of those clients on their final selection panel. 

MS EASTMAN: And for the BET Group, given you have got a very substantial workforce from culturally and linguistically diverse backgrounds, are there any particular selection criteria that you apply that might be different from other service providers? 

MS KORIR: So for us, I think the first soft skill that we go for and must truly go through that is communication. 

MS EASTMAN: How do you test that? 

MS KORIR: So in the beginning – is – when they have been shortlisted, they get a phone call from People and Culture, and that's just to talk on the phone about you and why you applied for this role. From that, they will know a little bit of – ‘communication’ for this person. And if they feel, yes, they can actually communicate, they can really explain who they were and why they want this role, then they will come in for a face to face interview with the panel. 

MS EASTMAN: Okay. Do all of your organisations do reference checking, police checks or other screening? So everybody is nodding to the reference check. Is that right? 

DR PANTER: Yes, screening, reference, police. Yes. 

MS KORIR: And ours is done, sorry, by an independent reference check company. It's not done by us. So it's very independent. 

MS EASTMAN: Have you found those screening processes helpful in the recruitment stage of not progressing a person beyond? 

MS FORSYTH STOCK: We certainly have ruled people out on the basis of those screening methods. 

MS EASTMAN: And if a person makes their way through the process and they are offered a position, is it customary that there is a probation period for every new employee? And what's the average probation period in your – 

MS FORSYTH STOCK: Ours is six months. 

MS KORIR: Six months. 

DR PANTER: Likewise, we also do – for a new worker, they will also do two buddy shifts with – with an existing worker. 

MS EASTMAN: During that probationary period, is there a requirement to undergo induction training? And is there something quite specific in the induction training process in your organisations? 

MS FORSYTH STOCK: Yes, we do an induction training. All our workers have a three-and-a-half-hour induction. We also do buddy shifts as well. We do three buddy shifts normally, but there's no cap on the number of buddy shifts if people – if their direct supervisor doesn't think they are ready yet, we can do additional buddy shifts. 

MS EASTMAN: How many hours training will they do in probation? 

MS FORSYTH STOCK: Well, we do between 35 and 40 hours of mandatory training a year. So you would say they probably do maybe two thirds of that during probation. 

MS EASTMAN: And would that be the same for BET and Minda? 

MS KORIR: Yes. 

DR PANTER: Yes. And we have a standard induction which goes over two days for new joiners to Minda, regardless of their role, whether they are an executive or a frontline support worker. And, again, we have a similar level of mandatory requirements in terms of training. We have set that out in detail in our evidence with – and how regularly that is revisited. 

MS EASTMAN: Right. So when somebody comes on board, they are employed as a support worker, is it that they start at an entry level position, or will it depend on their qualifications? 

MS FORSYTH STOCK: It depends on their qualifications and their previous experience and their life experience. 

MS EASTMAN: Do you require all applicants to have some form of qualification? And you might have heard earlier the discussion around Certificate III or Certificate IV. Is that a requirement for all applicants? 

MS FORSYTH STOCK: It's not for us. 

MS KORIR: It's a requirement for us, but if we have someone – I think we have about 15 staff that don't have a Certificate III in Individual Support, but they have a Cert III in Aged Care, then we consider. 

MS EASTMAN: In aged care. So they might have had a similar sort of experience that you think is relevant. 

MS KORIR: Yes. We also really encourage them to do the four modules to get the disability modules. 

MS EASTMAN: And from Minda? 

DR PANTER: We – around about 90 – just over 90 per cent of all of our new joiners have some sort of qualification, either the Cert III or Cert IV, or they will have another diploma if they are allied health or a behaviour specialist, et cetera. We do have a number who don't but who are working towards that, and that goes back to the issue about aptitude in our cadet scheme where we want to bring people in who have got the right aptitude. They might, for a whole range of reasons, not quite have the right qualification. We want to support them to get the qualification. So the – not having the qualification at the point they join may not rule them out from having the role if we believe that they have really got the right aptitude for the job and are beginning to make progress on the qualification side. 

MS EASTMAN: If you are framing it in terms of aptitude and cadets, is it the expectation from Minda that the person who might start at the entry level will have a career in Minda and, as they progress, work up through different levels, maybe become a supervisor, an area manager, whatever levels you may have? Is that the expectation, that there will be a career path for all support workers? 

DR PANTER: Yes. There should be a career pathway. It may not be within Minda. The reality is that, you know, we are a big sector as a disability sector, and you can't necessarily accommodate in one organisation all of somebody's particular needs as they are moving through their career pathway. And it is one of the areas where I think, nationally, we need to have more work done on establishing exactly what those career pathways are, you know – and, again, I can – 43 years ago, I started life as essentially a direct support worker working with people living with Down syndrome in the UK, you know, and I've had a very successful career on the back of that going up to chief exec level. And so I do want to see those career pathways, and they can go in a multitude of different ways. But we don't really have those well established. And certainly from some of the evidence I heard this morning, we don't have some of the systemic elements in place to enable that to happen. We have quite a lot currently working against people having those clear career pathways. 

MS EASTMAN: Can I ask each of you, in terms of having a mandated qualification, so a Cert III, what would be your view on the impact of requiring support workers to have that mandatory Cert III qualification? Can I ask you first?

MS FORSYTH STOCK: Yes. Look, I think it would be problematic for us as an organisation. I think probably only about 25 per cent of our support workers have a Cert III or above. We find that a lot of our casual staff, particularly in our regional areas, places like Bathurst and Wagga, often they are doing a nursing degree or something. So forcing them to do a Cert III, we would probably lose them. But that's not to say that they don't have the right attributes, and they have good clinical skills. Also, we have got a lot of support workers who have been working for us for a long time and have a lot of, you know, on the job experience, have got the right set of values, et cetera, but they are just not interested in formal study. And we do find, as much as we try to promote and support people, our completion rates can be quite low. 

MS EASTMAN: You have talked about one of the criterias or what you are looking for in a support worker is the values, the communication and that sense that they will be able to really connect with the people with whom they support. Do any of your organisations also require some qualification or training in human rights, in what you might call diversity or non discrimination? Is that something you are looking for and, if so, how do you work out whether someone has got the requisite skills or requires training?

MS FORSYTH STOCK: We certainly – human rights is one of our mandatory requirements. We use the NDIS Human Rights and You portal, which is very good. How do you work out – we have a supervision system in place where, every month, our support workers are supervised doing their job, and that's usually where you pick up if they don't have the right motivations, et cetera. We also – we get feedback from clients, and we get feedback from other staff, about who has the right motivations and who doesn't. 

MS EASTMAN: From the BET Group? 

MS KORIR: The same, similar for us. Our staff have one hour of supervision a month from the area supervisor and feedback from participants or other stakeholders, like positive behaviour support practitioners who are going to the placement and watching. We are in collaboration to see – to make sure that this participant is actually receiving their choice and control of this person. And if we get a feedback from an external stakeholder, like a behaviour therapist, then that person is stepped down with pay to come to the office and – 

MS EASTMAN: I want to ask you about that in a moment. I'm just mindful of the time. I might move to another topic. So, again, working our way through, you've decided to employ someone who committed to the training. I want to ask about the terms and conditions on which the support workers are employed. Again, is there anyone in the organisation who has that designated responsibility in terms of supervising the employment arrangements? Is it the same as the recruitment team, the HR team or something like that? 

MS FORSYTH STOCK: We have quite a large People and Culture team, and certainly they are responsible for pay rates. We operate under the SCHADS Award, though, so those rates are fixed from our perspective. 

MS EASTMAN: So you use the award as the determination of what the rates of pay will be? 

MS FORSYTH STOCK: Yes. 

MS KORIR: Same. 

MS EASTMAN: Same for BET. Minda has an enterprise agreement. How does that interact with the SCHADS Award in terms of determining rates of pay? 

DR PANTER: Essentially it is substantially better than the SCHADS award. It's an EB that was originally negotiated and signed off in 2016 and ran out technically in 2019. For a whole variety of reasons, the organisation, until I arrived there last year, has not looked to renegotiate that. And we have been in the process of renegotiating that over the course of the last couple of months, although that's now hit a roadblock with the new federal IR laws, because our main union, the United Workers Union, now wish to pursue a multi employer agreement and don't wish to engage with us as an individual organisation. But essentially the main difference between our EB and the SCHADS Award is in things like the penalty rates and the leave entitlements. So penalty rates is 30 per cent for a night shift as opposed to 15 per cent – 

MS EASTMAN: Can I ask you to slow down a little bit? 

DR PANTER: Sorry. And a – we have – for – shift workers, which is the large amount of our support workers, they are entitled to six weeks' leave as opposed to five within the SCHADS Award and only four in the NDIS Cost Model. And so that's one of the reasons we are having to look at renegotiating our EB, is that it is currently costing us in excess of $5 million a year more than the funding we are being provided through the NDIS for the services we are delivering. 

MS EASTMAN: Did you hear this morning Mr McFarland say that it is possible to negotiate enterprise agreements, but it's – I think I used the word "ring fenced" by the NDIS pricing as to how flexible and what options might be available in the terms and conditions buy particularly the pay rates for support workers? Have you had that experience? 

DR PANTER: So that certainly will be in the mind of providers, as it is with us, that our EB pre dates the NDIS being rolled out in South Australia. And that's why we have got that financial gap. And that's causing us huge issues as an organisation in our sustainability. We made a $10.5 million loss in FY22, as did many of the large providers. And the key factor in that was on our pay issue. And so that's why we need to try and renegotiate. But as I say, at the moment, we have hit a roadblock on that. 

MS EASTMAN: Does the composition of the workforce in terms of casuals and permanent part time have any bearing on managing the cost of the workforce? 

DR PANTER: Not necessarily. For us – the key issue for us in terms of that balance is wanting more permanent staff and more permanent full time in order to provide guarantees about the staff providing a particular client and giving them consistency and reducing the numbers of people that potentially might go through somebody's home. And in discussions with – directly with our staff – and this goes to what I was referring to earlier on – we have been looking at how to – we would like to, as part of those EB discussions, increase the hourly rate and reduce the penalties and offer more of a salaried option for frontline staff. The union has been very hesitant about that, but many of our staff are quite interested in that. But then it's exposed this issue about multi employment and the salary sacrifice. And so what we would have to increase by to overcome that, again, becomes another barrier.

MS EASTMAN: So it sound likes there is so many different levers, that depending on what might happen with one lever may have a flow on effect with others. 

DR PANTER: Absolutely. 

MS EASTMAN: In terms of the way in which you employ support workers, you have got terms and conditions in the industrial arrangements. But do you have individual contracts as well that you require your employees to enter into? 

MS FORSYTH STOCK: All of our employees would enter into a contract. We very, very rarely use individual flexible agreements, really because we don't want to fall foul of the industrial instruments. So we don't tend to do that. So we tend to just focus on the SCHADS Award. 

MS EASTMAN: All right. And others? Do you have – 

DR PANTER: We have individual contracts. 

MS KORIR: Individual contracts. 

MS EASTMAN: Do those individual contracts, if you use them, incorporate particular policies that you may have within your organisations and make adherence for compliance with the policies a term and condition of employment? 

MS FORSYTH STOCK: Absolutely. 

DR PANTER: Yes. 

MS KORIR: Yes. 

MS EASTMAN: So if – and I think we have asked you to produce some of this, but I'm in the time not going to go through all the policies. But some organisations say, Policies are really – they are guidance, but we are not going to hold you to account to it.” But do your organisations incorporate the policies into the terms and conditions?

MS KORIR: Yes. 

DR PANTER: Yes. 

MS EASTMAN: So that if, for example, someone doesn't comply with a policy, that could give rise to disciplinary action? 

MS FORSYTH STOCK: Absolutely. 

DR PANTER: Correct. 

MS FORSYTH STOCK: Breach of contract. 

DR PANTER: And I think that that's really important in the context of your earlier area of questioning around the human rights approach. In my experience around the whole issue of diversity and respecting self determination, it is very easy for organisations to celebrate elements of that. But to have real meaning, I think we have also got to be clear that we actually do discipline when there are failures of that. And certainly we have lost staff on that basis because they have not paid due attention to those factors. And that then sends a message to the whole organisation that you really do value that characteristic. 

MS EASTMAN: So I want to just ask a couple of questions about a Minda enterprise agreement and some features which – I'm interested in understanding whether this is common across other organisations. So if you have got your EBA there. And, Commissioners, if you wish to follow along, it's in tender bundle – Hearing Bundle D behind tab 5, and I'm at page 11. There is in the Minda EB a provision that is called Continuous Improvement, and that all of the parties to the agreement – so the workers and the organisation – will pursue continuous improvement in all areas of the workplace. And that has a very strong focus on compliance with the service standards, but very much achieving higher and greater levels of support and quality support for the clients, families and carers. Is that right? 

DR PANTER: Correct. 

MS EASTMAN: Continuous improvement would obviously place an obligation on support workers to always improve what they are doing in their discharge of their duties and perhaps their responsibilities. How does continuous improvement sit with working out what is remuneration appropriate for the nature of the work to be done if there is a model of continuous improvement? 

DR PANTER: I think – so two factors. One is just, again, restating what I have said earlier, this EB pre dates the NDIS approach. So there are some issues in terms of the links to remuneration. But essentially, this is much more around how people are undertaking their day to day jobs and how we want to see continuous improvement in the way they do their jobs and is not necessarily about remuneration. And so it is the way in which they take due notice around somebody's rights to self determination. It's how they undertake those day to day duties. It also places emphasis on the organisation having systems in place – 

MS EASTMAN: Slow down a bit. 

DR PANTER: Sorry. Having systems in place to identify what those continuous improvement elements are. And so our quality and safety team are critical in identifying what those issues are. They then flow through into that review of the regular training and what we see as being the sort of mandatory elements of training. So this section of the EB is more about capturing that process and seeing that as part of the day to day business of undertaking the job of being a carer. 

MS EASTMAN: Another feature of this agreement is a committee called the Industrial Liaison Committee. It's clause 17 of the agreement. Am I right in understanding that that clause really reflects that the support workers are included in the way in which either continuous improvement is achieved but also just the workplace culture and functioning of the organisation? Is that part of the purpose of the liaison committee? 

DR PANTER: That's part of the intent of that, but it tends to be – obviously, amongst our care workforce, we have union delegates, who are union members, who don't have an official role within the union but are freed up from the workplace to participate in various industrial type activities to make sure that we have the voice of that frontline carer in those sorts of discussions. 

MS EASTMAN: Does that body assist Minda negotiate what might be some tensions or conflict that may arise between the rights of employees and workers and the expectations of the clients? Do you see any conflict that may arise in terms of two sets of groups with equal demands and claims and a regulatory system under the Fair Work Act and work health and safety? How does the enterprise agreement help you navigate those issues? 

DR PANTER: Absolutely. But for things to get to this sort of committee and formalised in that way is really something getting to a head that hasn't been tackled within the day to day running of the organisation. And certainly, for example, one of the things which we have been engaged in over the last year in regard to recognising the clients' right to self determination is a lot of our work health safety policies have been constructed in a way as to absolutely minimise harm to the worker and to the client, but by stopping doing things as opposed to them being enabling policies. A great example is an approach to pets. I believe that somebody – an ability to have a pet, whether that's a goldfish, a cat or a dog, can be a huge benefit to somebody's wellbeing. And yet we have policies which said we didn't encourage them because of the work health safety impact for the staff member. 

MS EASTMAN: So how do you navigate that – 

DR PANTER: So that's where we have to navigate and work through it. 

MS EASTMAN: But how do you do that? 

DR PANTER: Well, I think it's about having open sensible conversations and looking at how you can construct a policy which, as I say, is enabling, rather than saying you can't do things. It is – the easy route is to say you just can't do something for work health and safety. It is more challenging to say, well, how do we do it in a way which is appropriate, and which keeps people safe. 

MS EASTMAN: All right. So can I come to the BET Group and LiveBetter and the issues that I've just raised with Minda. Do you have similar provisions, either in policies or the way in which you organise your business, around continuous improvement and the representation of workers in your structures? 

MS FORSYTH STOCK: We do. So we have house meetings and team meetings which involve frontline disability support workers. Similar to Minda as well, we have a quality and safeguarding team who is also very focused on continuous improvement. 

MS EASTMAN: And in BET? 

MS KORIR: Same – same at BET. We have – house meetings are done in the house and with the participants present. Then the team meeting is done ahead of this with just our staff. 

MS EASTMAN: The next topic I want to turn to is where things might not go so well. So it may be that there are some issues that arise, either in the conduct or the performance of support workers. And do each of your organisations have particular policies and procedures to address performance? And we will start with performance before we get to conduct. 

MS FORSYTH STOCK: Yes. 

MS EASTMAN: So how do you approach measuring performance? 

MS FORSYTH STOCK: So performance for us, we have a 12 monthly performance review cycle where all of our staff members are assessed against the NDIS Quality Standards. We also have ongoing supervision once a month, and that's where you would be assessing performance. Do you want to move on to – 

MS EASTMAN: I will come to conduct – 

MS FORSYTH STOCK: Conduct. 

MS EASTMAN: We will deal with conduct I think separately, a different issue. So performance in the BET Group? 

MS KORIR: Yes. So that's done on a probation evaluation and this, for a new worker, would be one month, three months and six months. We do it – the one month, three months and six months because we are aiming the six month probation, whether we want to keep this person or whether this person is actually suitable. 

MS EASTMAN: What about if they have finished probation and they are there permanently, casual, part time? How do you measure and what is your approach to performance reviews? 

MS KORIR: So performance reviews are done, and probation evaluations are done by area supervisors. We used to involve team leaders, but then team leaders were on the floor with the staff and that became tricky. So we made that rule. 

MS EASTMAN: Why did that become tricky? 

MS KORIR: It became tricky because these team leaders make friends as well with the team that they are working with. So it wasn't very – it wasn't very honest, and we thought this role actually being on the floor and leading a team wasn't working. So we made that role redundant and got an area supervisor who just really doesn't work in the house but manages the team and does the evaluation and the performance management. 

MS EASTMAN: And at Minda, what's your approach to evaluating and measuring performance? 

DR PANTER: Similarly. But in the last 12 months, what we have been putting in place is much greater attention to the staff member's performance in relation to the client achieving their goals. 

MS KORIR: Yes. 

DR PANTER: So that – because that's where the focus needs to be. And to do that, we have had to put more time and energy into the supervision. And we had a structure where, quite frankly, sort of the management level had too big a span of client numbers and therefore staff. And so we have moved away from that, and this was part of that co design process with our clients where our new cluster manager has between 12 and 20 clients and the staff reporting directly to them so they can do that much closer performance supervision in relation to the client's achievement of their goals. 

MS EASTMAN: Okay. So I want to then turn to conduct. So in terms of when things might not go well and that a support worker's conduct might cause violence, abuse or neglect of a client, what is the process that your organisation undertakes to deal with conduct? And that might include reporting. Is it an automatic stand down and then termination? 

MS FORSYTH STOCK: When it comes to violence, abuse or neglect, it's a stand down and then we conduct an investigation. That investigation may be conducted by our People and Culture team, but we also have an investigator, an ex police officer. So it depends on the nature of the allegation. If it's a serious allegation, he will do the investigation. 

MS EASTMAN: What's the, if I can phrase it this way, procedural fairness to an employee who is going to be stood down on the basis of an allegation that's yet to be investigated? 

MS FORSYTH STOCK: Well, we continue to pay them until we have conducted that investigation. 

MS EASTMAN: And the BET Group? 

MS KORIR: Same. So we stand down with pay, and a letter will go out explaining exactly what the allegations are and given time to get someone to come with them if they want to, given seven days to attend. 

MS EASTMAN: And for Minda? 

DR PANTER: Very similar for Minda. 

MS EASTMAN: Okay. In your experience, if conduct is the issue and the issue of conduct has arisen as a result of a complaint being made either by the person receiving services, a family member or another support worker, have you found that the policy of immediate stand down has any effect on the culture of the workplace to report incidents or to make complaints? 

MS FORSYTH STOCK: I find our workforce, by and large, is a very caring workforce. And when there's an allegation particularly of conduct, they tend to be very supportive of the person they are supporting, of the client, rather than the staff member. They tend to be pretty hard on the other staff member if they think that something untoward has gone on. 

MS EASTMAN: So it doesn't – you haven't seen in your experience  

MS FORSYTH STOCK: No.

MS EASTMAN: – that the risk of a stand down for a casual worker who may have insecure employment has the effect of startling – 

MS FORSYTH STOCK: Look, yes, I think in most circumstances, people who work in our industry really care about people with a disability. And in most circumstances, they will come down pretty hard on – their peers will. 

MS EASTMAN: I'm asking you that because we are about to speak to one of the service providers who had a situation around this. And so I – before we speak to Sunnyfield about what it has done in its response to these issues. 

MS FORSYTH STOCK: Look, I'm sure there is some people who take a contrary view. You know, I'm sure there is some people who will say, "That's not fair.” But by and large, I find that our workforce are a very caring workforce and they judge each other quite harshly. 

MS EASTMAN: Has that been the experience in BET, or have you found that the threat of an immediate stand down might deter people from raising concerns or complaints?

MS KORIR: Yes. For us, that's very true, especially for the young workforce who have just started. They are scared that reporting will probably be a reflection on them and actually not the incident as a whole and what it could do for BET to improve or for this person to actually, if there's risk, to be helped. Our area supervisors have done an amazing job of that one house provision every month, really going over why we must – you must tell me, you must report. It's not because we are going to stand you down, it's just we want to make this better for people with disabilities. 

MS EASTMAN: And for Minda? 

DR PANTER: Yes, I can't say that I've seen any negative impact. I think there has certainly been some tricky situations for some staff. Again, a bit similar to BET. For younger staff, perhaps who are relatively new joiners, working in a shared house where somebody might have been there 10, 15, 20 years and they are challenging them, then that can be quite difficult. And that, for me then, is about how you as an organisation are providing support to those people coming forward raising concerns. 

MS EASTMAN: So you have heard the evidence earlier today about the registration scheme in Victoria, and I think you may have heard me ask the questions about mandatory registration, and Dr Macdonald and Mr McFarland dealt with that. Do your – I think you have got some in Victoria. But for the jurisdictions which don't have that Victorian scheme, do you have a view on whether there would be a benefit to service providers in your organisations if there was a mandatory registration scheme? 

MS FORSYTH STOCK: Mandatory registration of all disability providers?

MS EASTMAN: Yes. Support workers. 

MS FORSYTH STOCK: Of support workers. I think there is a lot of NDIS worker screening, a lot of probity checks that are already done. So I think if it was done, it would need to be streamlined. I think there's a lot of compliance requirements already. 

MS EASTMAN: And for BET? 

MS KORIR: I think there is room for it. Like she said, streamlined it would help, especially when it comes to a worker who has come to BET has done something horrible. We have reported, we have stood them down, we have fired them, they have gone to another provider and continued that. They there is no way for us to know or to – or for the NDIS Commission to quickly investigate that and make sure this person is never working with people with disability. So I think there will be room for that, but how that will look like, I – 

MS EASTMAN: For Minda, I mean, as you are aware, the Royal Commission at Public hearing 14 considered the experiences of people with disability receiving services from South Australian Government. And the Royal Commission also had regard to the reports and investigations undertaken following Ann Marie Smith's death. And so there is the South Australian safeguarding report. I don't know whether that's had any bearing on Minda's responsibilities in the sector or whether that has informed any view that you may have about mandatory registration for support workers. Do you want to comment on anything that's quite specific in that South Australian context? 

DR PANTER: I think that certainly from Minda's perspective, we would welcome a national registration arrangement. Because I think what we currently have is a mish mash of different regimes, some of those split between federal and state, and it's all too easy for individuals to fall between the gaps. We are going through that at the moment around restrictive practices where South Australian Government has adopted its own approach in addition to the NDS approach, which requires two different sets of reports because they are not counting the same thing. So I think a national registration scheme would be of benefit because it would streamline the current potential clunky processes. But also going back to the issue earlier about careers, to my mind, having had that experience across health and social care over the last umpteen years, having a registration body is a sign that you are a professional group. Nurses have it. Allied health have it. Doctors have it. Do we so  

MS EASTMAN: Even lawyers have it. 

DR PANTER: Exactly. Do we so undervalue the job that our direct care staff do that we don't see them warranting some sort of professional registration body? So, for me, it's about actually demonstrating that this is a really valuable service that care workers are providing, as well as simplifying the bureaucracy and making it more efficient. 

MS EASTMAN: All right. So last question – and it's really an open question for each of you – is thinking about the current challenges in recruitment and retention of support workers, have any of your organisations given thought to what might be new or different models or ways in which you can recruit the right people but, more importantly, retain them? Have you been giving some consideration to that? 

MS FORSYTH STOCK: Yes. That would be one of our number one challenges, is the retention. The recruitment we tend to get – in the regional areas, we tend to get quite a few applicants. It's keeping them. So we have an employee value proposition that has three components. The first is around reward and recognition, and that's not necessarily what you get paid, it's how you get recognised and rewarded and you feel valued by the organisation. The second part is around health and wellbeing of our workforce. We always say that the sticky relationship is between the frontline worker and the client and, therefore, that's the relationship that we need to nurture, and we need to look after our support workers, and their mental health and wellbeing is a really big part of that. And then the third one is career development. I mean, I couldn't agree with you more, David, in terms of having to make it a more professional approach so that people do feel that there is career opportunities and developments. 

MS EASTMAN: And for the BET Group? 

MS KORIR: So at BET, we started that in 2022 – beginning of 2022. It's a program called Spotlight on Excellence, and it is for participant and other staff to nominate someone that has been doing something amazing towards a client's goal or within our values. And this person is nominated, they get an award, and they get to have lunch with the directors and really talk about themselves and also what we can do to improve – most of our improvements have come from Spotlight on Excellence. 

MS EASTMAN: Is that enough for retention, to be acknowledged and have lunch with the directors? And I'm sure it's a terrific lunch, but is that enough?

MS KORIR: It is. It is. A lot of staff that have received it have truly chosen us as an employer of choice. But we also think for retention – and it is something that we are exploring with the South Australian Government – is targeted migration, skilled migration, to come specifically for disability. They must have the qualification and speak English, of course. But then to be sent to regional. So that's for three years. That's continuity of care, retention for that company and continuity of care for the participants. 

MS EASTMAN: And for Minda, have you given some thought to different innovative ways to bring back retention? 

DR PANTER: So, yes, similar to as others have said on the panel in terms of those – you know, reward and recognition, et cetera, et cetera. But it is also that element around enabling people to have more, if you like, control in the way they actually go about their work. You know, for me, a good example was those sort of work health safety policies. Absolutely necessary, but you can have enabling ones that liberate staff to be able to work in a very professional way that is in the pursuit of a client's goals rather than work against it. So how do we keep making sure we have got that in place? And then it's the career development and creating the pathways. I think that's the real gap at the moment. On a very practical level, our biggest hindrance when it comes to more regional services in the south east of South Australia and on the Yorke Peninsula is as basic as access to affordable housing. I don't have a problem recruiting the staff, but there is no housing. 

MS EASTMAN: For the staff.

DR PANTER: For the staff. And that, again, is a conversation that we are having with the State Government. Because it is very, very difficult to get housing that's affordable given the remuneration levels in disability frontline work in those areas. 

MS EASTMAN: Well, thank you very much for answering lots of questions. I've had a few this afternoon. The Commissioners may have some follow up questions as well. Chair.

COMMISSIONER BENNETT: No. Thank you. 

CHAIR: Commissioner McEwin? 

COMMISSIONER McEWIN: One question. Dr Panter, I wanted to understand better a response in relation to Ms Eastman's questions around recruitment. And if I understood, you said you have an assessment centre where clients volunteered to be part of the recruitment assessment of support workers, including being on selection panels. Is that correct?

DR PANTER: Yes. So, two different elements. We have – once somebody has been through the paper assessment process, they go to an assessment centre. And that's where some of our clients volunteer to interact with those potential staff members so we can see how they – how the potential staff do interact with people with a disability, how they help them cook a meal, et cetera, et cetera. Once somebody has passed the assessment centre to be allocated to a particular job supporting a particular client, then that client and their family, if the client wishes them to be involved, will be involved in that final selection process as to who is going to work for them. 

COMMISSIONER McEWIN: Okay. Thank you. I just want to pick up on what you said: "volunteer.” So the clients, who I assume are disabled, are not paid for their time as part of this – what I assume is a professional recruitment process. Is that correct? 

DR PANTER: So our – 

COMMISSIONER McEWIN: They are not paid? 

DR PANTER: Yes. So these would be people who are already attending our day program activities, et cetera. So at present, they are not necessarily financially rewarded for participating in that session. 

COMMISSIONER McEWIN: Don't you think – so can I put a proposition. Don't you think that disabled people should be remunerated for being part of your professional activities? Why not? Why aren't they not paid? 

DR PANTER: It is something – because it is something which we have only just started doing, and we are looking at that as part of looking at our overall role of volunteers. So I absolutely don't disagree with what you are saying, Commissioner. It is something which we are looking at. But we haven't done it to date. 

COMMISSIONER McEWIN: Interesting. Thank you. 

CHAIR: George Bernard Shaw said that all professions are conspiracies against the laity. There is no particular reason, one assumes, why disability support workers shouldn't join doctors and lawyers and so forth. To do that, wouldn't it be necessary to have some basic qualifications as a precondition to entry to the profession? 

DR PANTER: To my mind, that would be part of the registration, whether that's – as I have already said, for Minda, we already require our staff to have at least a Cert III qualification. So absolutely, to be part of the registration system, there would need to be a clear set of criteria that have to be achieved for you to be eligible to be registered in the first place. 

CHAIR: It's not just a matter of status; it's a matter of ensuring that everybody who comes into this important role has the training that equips them to do the work that's required. I take the point that that doesn't mean that everybody who has done the training is necessarily well equipped, because there are other attributes that are required by way of personality, empathy, communication and so forth. But I'm just a little surprised that you seem to resist the notion of some qualifications as a prerequisite. 

MS FORSYTH STOCK: Look, I think from my perspective, I'm all in favour of qualifications. I just think that there are practical repercussions of that. We struggle with the workforce now, and I suspect – what tends to happen is our workforce tends to go into areas like hospitality. We compete against those sectors. So what I'm concerned about is creating barriers so that we don't get the workforce that we need. But I think it's a good idea. I just think the reality – the practical reality, particularly in regional areas, is that people – we compete for workforce, and it's hard enough at the moment. It takes between – if somebody doesn't have any of the NDIS worker screening or a working with children's check or a criminal check, it probably takes six weeks for us to on board them, which time we lose a lot of workers. They go and work in hospitality. They go and work in tourism. In towns like Orange, there's plenty of opportunities. And that's the problem, that I think if we put too much barriers – 

CHAIR: Another problem, as I understand it, is the historically low pay for feminised and casualised workforces. 

MS FORSYTH STOCK: Absolutely. 

CHAIR: If you have higher standards for entry, then the argument for better pay, better status and so forth, one might think, would be enhanced. 

MS FORSYTH STOCK: I absolutely agree. The problem is, though, we are constrained by the NDIS funding model at the moment. 

CHAIR: That's a different – that's a different problem. 

MS FORSYTH STOCK: It is a problem, and it's an ongoing problem, because I would love to pay my workers more. But I can't because I will go broke. 

CHAIR: A couple of the issues you raised, if I understood them correctly, are important but essentially transitional. If you've got people already in the system who don't have qualifications, well, perhaps they need to be protected and kind of grandfathering, grandmothering, whatever the current expression is, to ensure that they are not adversely affected. And similarly, if people have qualifications, for example, in nursing, one would have thought that they should get credit for those qualifications to the extent they overlap with the qualifications for disability support workers. 

MS FORSYTH STOCK: And often we will have people – yes. Often we will have people who are studying nursing, and they work as a casual employee for us. They are great because they bring great clinical skills, and they care. So I wouldn't want to lose those workers either. 

CHAIR: No. I can understand that. Forgive my ignorance, but a Cert IV qualification – who provides the training for a Cert IV qualification? 

MS FORSYTH STOCK: Any registered training organisation who is accredited to provide that particular qualification. 

CHAIR: Does the student have to pay? 

MS FORSYTH STOCK: In some circumstances, they do. There's a lot of fee free courses at the moment. Certainly coming out of the pandemic, there has been a lot of fee free courses. Traditionally, the student did have to pay. The State Governments in all jurisdictions, it's their purview. I find the training parts of State Government to be very supportive. And if we are looking for funding – not always for a full qualification, sometimes for a part qualification, I have always found them very, very supportive of us as an organisation. 

CHAIR: How long does it take to get a Cert IV qualification? 

MS KORIR: A year. 

MS FORSYTH STOCK: It's a year, isn't it? Yes.

MS KORIR: 12 months. 

MS FORSYTH STOCK: Yes.

MS KORIR: 12 months with 200 hours of practical. 

CHAIR: So it's part time over 12 months. Alright. Well, thank you very – I'm sorry, have I – yes, I've asked my colleagues. Thank you very much for your evidence. It's been a very interesting and helpful discussion. So thank you. We appreciate your assistance and contribution to the Commission. Thank you. 

MS KORIR: Thank you. 

MS FORSYTH STOCK: Thank you. 

CHAIR: Ms Eastman.

MS EASTMAN: Thank you, Chair. So there is no tenders for this panel, and I should have mentioned this yesterday, that the service providers have responded to notices from the Royal Commission. And after the hearing is completed and in consultation with the various organisations, we will then tender that material in due course. So our final witness for today is Mr Hyland from Sunnyfield. Perhaps if we can have one or two minutes just to reconstitute the hearing room and then we will proceed with Mr Hyland. 

CHAIR: Yes. Thank you again. Thank you. Yes, we will adjourn. 

<THE WITNESSES WITHDREW

<ADJOURNED 3:36 PM 

<RESUMED 3:49 PM 

CHAIR: Yes, Ms Eastman. 

MS EASTMAN: Thank you. Our final witness today is Mr Andrew Hyland, who you will see here is with us in-person in the hearing room. And I think he's going to take his oath or affirmation. 

CHAIR: Thank you very much for coming to the Royal Commission to give evidence today and for providing the information to the Commission that's been requested. If you would be good enough to follow the instructions of my associate, she will administer the oath to you. 

<ANDREW HYLAND, SWORN 

CHAIR: Thank you very much. Please do sit down. I will now ask Ms Eastman to ask you some questions. 

<EXAMINATION BY MS EASTMAN SC 

MS EASTMAN: Commissioners, before I ask some questions, I just want to put context in terms of the session this afternoon. Sunnyfield Disability Services, that I will refer to as Sunnyfield, was the subject of Public hearing 13 held in Homebush from 24 to 28 May 2021, with an additional day for oral submissions on 10 September 2021. The Sunnyfield hearing was the first of several Royal Commission hearings examining how disability service providers prevent and respond to violence, abuse, neglect and exploitation. Public hearing 13 focused on a case study about the experiences of people with disability residing in a house in Western Sydney in New South Wales. The house was operated by Sunnyfield, and we reflected on a four year period. 

Some of the issues examined at the Public hearing included how residents who were NDIS funded had NDIS funded supports and services, how those supports and services were provided, how their agreements for accommodation and support services with Sunnyfield operated, how Sunnyfield communicated with the residents and provided information to the families, how Sunnyfield responded to incidents that occurred or complaints that were made. And we examined the policies, systems and operations. Other issues also included the extent to which there was supervision over some of the support workers and whether there was a culture of not making complaints about serious incidents as they arose. 

Commissioners, you issued a report following Public hearing 13, and it was published on 5 April 2022. It contains 24 findings and three recommendations. And so this afternoon we will hear from Sunnyfield about what actions have been taken since the publication of the Report with respect to the findings and recommendations. In the time available, I may not cover every single finding, but what I want to do is to go to the key and core findings. So our witness today is Mr Andrew Hyland. You have been CEO of Sunnyfield since October 2022. 

MR HYLAND: That's correct. 

MS EASTMAN: And before that, you were the CEO of another disability service provider, Lifestyle Solutions. 

MR HYLAND: That's correct. 

MS EASTMAN: And that's a position that you held from some time in 2016. Is that right? 

MR HYLAND: That's correct. 

MS EASTMAN: And you come with a corporate background, having worked in insurance and other corporate settings. Is that right? 

MR HYLAND: That's correct. 

MS EASTMAN: Now, since your arrival and since the Royal Commission hearing, there's been a few changes. So can I just confirm some of the changes in personnel. So Sunnyfield announced on 14 June 2022 that its former CEO, Ms Cuddihy, had resigned? 

MR HYLAND: That is correct. 

MS EASTMAN: And you commenced, as I said earlier, in October 2022. 

MR HYLAND: That's correct. 

MS EASTMAN: One person who featured in the evidence at Public hearing 13 was Jennifer Luff, and she has now resigned from the – from Sunnyfield. Is that right? 

MR HYLAND: That's correct. 

MS EASTMAN: And according to the Sunnyfield website, there have been changes in the composition of the Board. Is that right? 

MR HYLAND: That's right. 

MS EASTMAN: And there have been 10 new members since the Public hearing was completed in 2021. 

MR HYLAND: That sounds right. 

MS EASTMAN: And I might ask you some questions about the board members. So you've got a copy of the report with you. And you have, I think, had an opportunity to read that report. 

MR HYLAND: Yes, I have. 

MS EASTMAN: And have you been following the work of the Royal Commission generally? 

MR HYLAND: Yes, I have. 

MS EASTMAN: Now, since you have taken on the role of CEO of Sunnyfield, have you had an opportunity to personally meet with Eliza and/or Sophia? 

MR HYLAND: I have met with Eliza, not Sophia. 

MS EASTMAN: Okay. And have there been – 

MR HYLAND: I apologise. Can I just clarify. With the pseudonyms, I need to – Sophia is the mother. 

MS EASTMAN: Sophia is Carl's mother, and Eliza is Melissa's sister. 

MR HYLAND: I apologise for the pseudonyms. 

MS EASTMAN: Does that help, using the pseudonyms? 

MR HYLAND: Yes, I have spoken to Karl's mother. 

MS EASTMAN: Okay. So you have spoken to Sophia but not to Eliza? 

MR HYLAND: I have spoken to – I have met – I – I apologise. I'm confused with the pseudonyms. 

MS EASTMAN: Okay. Well, why don't we come back to that and if we need to give you the proper names – 

MR HYLAND: Yes. I have been to the house, and I have met two of the clients, and I spoke to two of the parents. 

MS EASTMAN: Okay. But Eliza is the sister of Melissa. 

MR HYLAND: I have not spoken to her. 

MS EASTMAN: And is there any reason why you have not spoken to Eliza at this point? 

MR HYLAND: There is no particular reason, no. 

MS EASTMAN: All right. So with the findings, I don't this afternoon want to go through every finding but there are a few matters arising from Sunnyfield's response to the Royal Commission's notices. And, Commissioners, I should mention, Mr Hyland will be here with us tomorrow. He will be part of the workforce panel. So, if there are workforce issues, then I might not deal with them this afternoon and we can come back to them tomorrow when we look at the workforce issues. 

CHAIR: Thank you.

MS EASTMAN: So I want to start with one of the findings. And Ms Piaud, who was the investigator, she in her investigation found that the Western Sydney house was dysfunctional. And the Royal Commission accepted her observations and made a finding that the house was dysfunctional, saying that Ms Piaud's findings accurately reflect the state of affairs at the house. Since you've become the CEO, have you had an opportunity to review the circumstances in the house and do you have a view as to whether it continues to be dysfunctional?

MR HYLAND: Yes, I have had a chance to review circumstances in the house, and my assessment is there is a new – a new team – a new team leader in place, that the house is working quite well. It has really improved a lot in the last 12 to 18 months, based on my inquiries into the house. 

MS EASTMAN: What have been the significant improvements that have brought the house from a state of being dysfunctional to something better? 

MR HYLAND: I think communication is probably the number one factor and a really open line of communication with the family members, regular updates about what's happening in the household, raising issues earlier if there are issues. And I think team leadership has also been a big improvement in terms of galvanising the team. 

MS EASTMAN: What's been the key to improving team leadership? Are you aware of any particular actions that have been taken?

MR HYLAND: Well, I think there's been two – it comes down to the capability of the people leading in the house. So there was a very senior person put in – into that house in the early stages who had done a very good job in stabilising everything. And then we recruited externally for a new house service coordinator, house manager. That person comes with a very diverse background in dealing with difficult situations and complex matters, and they have brought real – just real leadership, real ability to diagnose problems, to understand what's required to cut through. 

MS EASTMAN: All right. One of the findings – and I might deal, Commissioners, with findings 7 and 8 together – was that Eliza – so – and, again, if you need assistance – and I'm – perhaps someone can write down the – I will give you a note which is only for your benefit so that you know when I'm referring to different people who they are. So finding 7 and finding 8 concerned some findings in relation to agreements between Sunnyfield and Melissa, Melissa being the resident in the house, and Eliza being her representative. So the finding was that Eliza was not given an opportunity to negotiate any terms of the service and residency agreements. Now, in the submissions made by Sunnyfield in response to the Counsel Assisting submissions, there was a concession that Melissa's ability to negotiate the terms of Sunnyfield's standard support agreements were limited. And my question is whether there have been any changes in the way in which the residency or service agreements operate that now permit a degree of negotiation on the terms and conditions. 

MR HYLAND: So there is definitely a change in practice. There are technically no changes to the service agreement, and that's something that I identified in my inquiries and something I've gone to look into as a priority. It's properly documented. But there is a definite change in the practices of communicating and understanding what those requirements are and making sure that those requirements were fulfilled. 

MS EASTMAN: So when you read the report, you would have seen that one of Eliza's concerns was to get information about the service agreement and to understand whether there were particular terms that she might, on behalf of Melissa, be able to change or have some modification. And my recollection is that the evidence was that these were standard form agreements and so there wasn't that capacity to negotiate. If Sunnyfield is continuing to use those standard form agreements, then where do you see the capacity for somebody to negotiate and on what terms you might be able to negotiate? 

MR HYLAND: Yes, I understand. So first of all, Sunnyfield absolutely agree that there should be flexibility in the ability of all clients to vary their service agreement, meet their choice and control requirements, insofar as we can provide those services. If we can't provide those services, that's a different – a different matter. Through my inquiries, I have identified that new agreements have been drafted and they are under review. They have not been implemented. And, again, that's one of my key priorities, to make sure that happens. But the key point I want to make is there will be absolutely the capacity for variations in those agreements, depending on the individual's requirements. 

MS EASTMAN: Has the task of drafting new agreements been a task that has involved family members giving some feedback and advice about how the agreements would work in practice for them to understand their rights and responsibilities, and also for the residents themselves? 

MR HYLAND: Yes, so we have taken into account the views of the families from this particular service particularly, but we want to do a broader continuous improvement on that so that we can make sure that all families can have their say in that manner. 

MS EASTMAN: And I assume that's not just limited to the house in Western Sydney but across the whole of the suite of services to which either service agreements or residency agreements operate. Is that right? 

MR HYLAND: That's correct. 

MS EASTMAN: And in terms of the people who enter into these agreements, be it people with disability themselves, or if they have family members or guardians acting on their behalf, what information will they have about their ability to negotiate? 

MR HYLAND: So there needs to be a big communication campaign that supports this at all levels distributed through the houses themselves, through the support workers, on the website and all communication channels. That work has not been developed, but it will be. 

MS EASTMAN: Now, I want to turn to, as a group, finding 9 through to finding 13. And Commissioners might have that  

CHAIR: Ms Eastman, if you have just left those findings, may I ask a question, please, Mr Hyland. 

MS EASTMAN: Yes, of course. 

CHAIR: Following up on what Ms Eastman has just asked you, finding 6 in the report – and I think you have got a copy of the report, it's on page 79 – said: 

Sunnyfield presented Eliza with the service and residency agreements for signature on the basis they could not be varied and were not open for negotiation. In fact, contrary to what Eliza was told, there was nothing to prevent her from seeking amendments to the agreements. 

Has there been anything done up to date to correct the information or misinformation that was given to Eliza, and presumably to other family members or residents, about capacity to negotiate, or is this something that is still in the works? 

MR HYLAND: No, I was part of the – it is part of the follow up conversations with the house. A number of commitments were made by Sunnyfield. They just have not been documented formally in an updated service agreement. 

CHAIR: So there is no document at present within Sunnyfield that any prospective resident or family could refer to which says, "You are entitled to discuss with us with a view to renegotiating the terms of a draft agreement with which you may be provided." 

MR HYLAND: I – I don't know if that exact wording exists. I would have to check. 

CHAIR: It might be a good idea. 

MR HYLAND: Yes. 

CHAIR: All right. Thank you. Thank you, Ms Eastman.

MS EASTMAN: The next group of findings is finding 9 to finding 13, and these are findings that the Commissioners made in relation to the circumstances where a decision had been taken in Sunnyfield to terminate Eliza's service and residency agreements. And the Commissioners might recall the evidence of this period being a very stressful period for Eliza as she sought to find alternative accommodation and the circumstances in which she felt that that threat was hanging over her. So the Commissioners made some findings in relation to the circumstances of the proposed termination, noting in finding number 9 that: 

Sunnyfield's decision in January 2018 to terminate those agreements prioritised Sunnyfield's interests over those of Melissa, specifically to a right to a secure and safe home. 

And the Commissioners also made some findings in relation to Sunnyfield being heavily influenced by concern for its own reputation and its desire to take advantage of a window of opportunity, and then delays in terms of informing Eliza. So we understand, since the hearing and since the – prior to the Commissioners' Report and recommendation – and you will see recommendation number 1 is that: 

Sunnyfield should clarify in writing that the 4 June 2018 eviction notice sent to Eliza has been withdrawn. 

But those steps were taken. So it's the case, isn't it, that Melissa remains at the Western Sydney house? 

MR HYLAND: Yes. 

MS EASTMAN: And that any uncertainty over Melissa being evicted has now been resolved and there is confirmation in writing that the eviction notice will be withdrawn. 

MR HYLAND: That's correct. 

MS EASTMAN: So my question for you is really stepping back – and, again, accepting you were not there at the time and that you've come in in recent times, having read the Commissioners' hearing report, what within Sunnyfield has changed that would mean Sunnyfield as an organisation would never get into the position it was of finding a way or, as the Commissioners described it, a window of opportunity to evict a young person with disability in that conflict that existed between Sunnyfield and Melissa at the time? What's changed? 

MR HYLAND: So there have been some changes to our practices and processes in relation to the – "eviction" is not the right word – for people moving out of residence, in the case of where – we were going to a situation where we felt there was an incompatibility, and we were working with the clients to determine if they needed any accommodation. That matter would have to be taken to the board. So that's a – that's a – that's a particular control. 

MS EASTMAN: So can I just stop you there. So if, for example, something arose in one of the homes where the ongoing residency of a person was no longer sustainable for whatever reason, is that before any decision was made to start the process of removing that person from the home, it has to go to the board. Is that right? 

MR HYLAND: That's absolutely correct. 

MS EASTMAN: And what is the effect of going to the board? What does that mean? Does the board make the decision or does the board have to give advice or oversight of you making the decision? 

MR HYLAND: Well, it is both of those, but the – part of the process is conversations between the board and the family members. That's one step in that process that has to happen. 

MS EASTMAN: One of the issues that arose in this hearing was that Eliza was struggling to find alternate accommodation and didn't have assistance in terms of locating suitable alternative accommodation. Under the current approach in Sunnyfield, would the board need to be appraised of what other alternative accommodation options are open? And does Sunnyfield, through the board, make a commitment to assist the families find suitable appropriate accommodation? 

MR HYLAND: Yes. So the board are appraised of all movements in shared accommodation, or proposed movements. Sunnyfield would have a number of operational processes in place to make sure that all avenues for finding alternative accommodation are explored before we would even consider an exit process. 

MS EASTMAN: I want to turn now to – unless the Chair has got any questions arising from those findings – to finding 14. 

CHAIR: You go ahead. 

MS EASTMAN: Finding 14 concerns the two support workers who use the pseudonym SP1 and SP2. And the Commissioners found that:

SP1 and SP2 were responsible for misrepresenting and not disclosing their full work histories. However, Sunnyfield did not have in place sufficiently thorough processes to check the accuracy of the information provided by SP1 and SP2, or to identify and investigate gaps in the resumes. 

So we ask Sunnyfield what changes have taken place to address any changes in the screening and recruitment practices and whether or not those practices have been strengthened as a result. Can you speak to what changes have been undertaken? 

MR HYLAND: Yes. I may need to refer to the detail if you want me to go to the – 

MS EASTMAN: To the notice. 

MR HYLAND: To the notice. 

MS EASTMAN: In paragraph 1. 

MR HYLAND: So there are a number of changes that have been made to the recruitment practices. I'm happy to summarise each of those key points. 

MS EASTMAN: Yes, if you can. 

MR HYLAND: If that helps. So new practices were implemented, verification of an applicant's employment history and qualifications through a third party; copies of an applicant's relevant qualifications, certificates and memberships must also be obtained; a criminal history check is obtained independently; applicants are to provide a complete resume with no unexplained gaps in their history; independent internet searches of applicants to be undertaken to assess any social media pertaining to them; NDIS worker screening checks; psychometric assessment for leader positions; and as a prerequisite to starting any position, you must complete the NDIS Worker Orientation Module, Quality, Safety and You certificate. 

MS EASTMAN: Can I ask about the psychometric assessment for leadership positions. Is that for anybody above that entry level support worker? So leadership position would be a house supervisor and above? 

MR HYLAND: I would have to take that on notice. 

MS EASTMAN: Commissioners, the next set of findings I want to address are findings 15 to 17, and this concerns the way in – if I may summarise, the way in which SP1's employment at the house was managed and the extent to which there was supervision in place. So the Commissioners made a number of findings in relation to, if I can again summarise, the failure of the supervision arrangements. And I wanted to ask you, Mr Hyland, in terms of the way in which the houses are managed and the role of the supervisor in the house and the systems of supervising what occurs in the house, what changes have been made? 

MR HYLAND: So one of the – one of the key changes that's been made is that the regional managers must visit the sites on a frequent basis to provide – 

MS EASTMAN: What's frequent? What's frequent? Like, is it a weekly – 

MR HYLAND: Each regional manager would have about seven services. So every – every week or every other week. 

MS EASTMAN: So anything else? 

MR HYLAND: So a number of training initiatives have been implemented to develop skills and capabilities of the house managers. There are some additional reporting requirements that have been put in place, and communication protocols between service coordinators and families have been tightened up. 

MS EASTMAN: Perhaps if I ask you the question this way. Are you satisfied or confident that what happened at the house could never happen again as a result of the changes made since the conclusion of the hearing?

MR HYLAND: Yes. And I just want to put some context behind that answer. As part of my first 90 days on joining Sunnyfield, I spent the first 90 days evaluating a number of services. I visited over 30 services, 20 residential and 10 community processes. I spoke to over 100 staff, clients and family members. I observed practices. I reviewed house practices and reviewed particular communication protocols and documentation. And I looked at the support services as well that provide quality, risk and assurance across all of that. So based on that assessment and based on my knowledge and experience from the sector, I am satisfied that the adequate processes are in place. 

MS EASTMAN: And I want to turn, Commissioners, now to findings 18 and 19, and these concerned the relationship between Sunnyfield, Eliza and Sophia when they sought to raise queries, complaints and concerns. Finding 18 was that: 

Sunnyfield's responses to the feedback from and complaints by Eliza and Sophia were defensive and often hostile. The responses contributed to the feelings of mistrust between Eliza and Sophia, on one hand, and the Sunnyfield staff external to the house, on the other. 

That's a reference to the management. Finding 19 was that: 

It was entirely inappropriate for Ms Cuddihy, the CEO of Sunnyfield, and other services staff at Sunnyfield to label Eliza as "querulant". Labels of this kind negatively influence how a service provider perceives and addresses feedback and complaints and can compromise the health, safety and wellbeing of residents. 

In light of those findings, which are critical of the way in which Sunnyfield treated Eliza and Sophia for raising complaints or raising concerns or providing feedback, what has changed in the culture and the practice within Sunnyfield in how family members are treated? 

MR HYLAND: Yes. So first of all, I just want to say that, in my opinion, there is no such thing as a querulant complainant. If someone has a complaint and they are making it many times, there is clearly an issue. One of the key lessons from the hearing was that culture was critical. Culture – the type of culture that I'm talking about is we want to have a culture that is open, where people feel safe to speak up, where people feel safe to report an incident, to report a complaint. And that comes from leadership. It comes from the top. 

One of the initiatives put in place was a clients – client rights and safeguarding subcommittee of the board. So that's setting the tone from the top in terms of taking this very seriously. Additional capability has been put into the organisation, which include leadership skills to encourage and promote open and transparent communication. Listening to people is a communication that we put out on a regular basis. House visitations by board and senior leadership team members. So over 300 house visits or service visits have happened in the last 12 months. And it's really about having an open – open responsive way. And also, of course, there are complaints management and incident response processes which have much improved. 

MS EASTMAN: As the CEO, do you accept that, as the CEO, you are ultimately responsible for the culture of the organisation?

MR HYLAND: Yes.

MS EASTMAN: And in terms of that responsibility, is there accountability to the board in terms of how you oversee the culture of the organisation? 

MR HYLAND: Mmm. 

MS EASTMAN: When you say "mmm", you mean yes? 

MR HYLAND: Yes, yes, yes.

MS EASTMAN: Is that part of – and, again, I will come back to a session that we had yesterday – a KPI for you to report to the board on how you are addressing culture, for example? 

MR HYLAND: Yes, yes, yes. Culture and client outcomes. So staff – staff engagement, staff satisfaction, staff behaviour, client outcomes, client safety. 

MS EASTMAN: I don't know if you heard me ask this question yesterday, but some models of accountability are not just accountabilities of CEOs to the board but accountability to those to whom you provide services. Is part of your accountability also accountability to the families and to the people with disability to whom services are provided? 

MR HYLAND: Absolutely. Yes. 

MS EASTMAN: How does that – how are you accountable in that sense to the users of the services? 

MR HYLAND: Well, ultimately, I am there and Sunnyfield is there, but I am there as the chief executive to make sure that clients or service users and families receive the services that they need, that they want and that the way in which they receive those services is a respectful and good, positive experience, that they feel open to raise issues, that they feel comfortable in calling me directly if that's what's necessary. 

MS EASTMAN: If, for example – and I'm not saying this is the case. But say hypothetically that Eliza and Sophia felt that all of the cultural changes had not been made or put in place, then what's your accountability to them or other families in other residents? 

MR HYLAND: Well, I would want to speak to them and ask them for their input into that and ask them why they feel that's the case and ask them what do they think that we should do, should do better and work with them. And often the families – in fact, most cases, the families and the clients have a lot of the solutions. We just need to listen to them. 

MS EASTMAN: Do you know if Eliza or Sophia have been asked at any point in time in relation to this cultural change so that you are not in a situation where Sunnyfield feels in conflict with the family members? Do you know if they have been asked at all to contribute to any cultural change? 

MR HYLAND: I – I don't think at the organisation level. I think there's been a lot of feedback at the service level. 

MS EASTMAN: Yesterday, we also had a panel of advocates, and we asked the advocates who may be involved and asked to walk with a person with disability or a family member to resolve complaints or to help resolve issues with service providers. And I asked the question of whether service providers were open and welcoming to bringing in advocates from different advocacy organisations, independent advocates. Has Sunnyfield given any consideration to an approach of welcoming independent advocates or getting the advice of advocates on what could change in terms of building a better culture? 

MR HYLAND: Yes. There are practices, albeit not consistently applied across Sunnyfield, where advocates are involved and ultimately involved. My personal opinion is that they should absolutely be welcomed in, and part of my role will be to make sure we have a policy to make sure that happens. 

MS EASTMAN: Now, I wanted then, Commissioners, to turn to findings 20 to 23, which concerned the composition of the board and the representation of people with disability. So the Commissioners made a finding that: 

The board of Sunnyfield, at all relevant times, did not include a person with lived experience of disability. 

And then there's a range of other findings sort of touching on that representation. I think we have mentioned earlier that there has been a change in the composition of the board, so 10 new members. Are we right in understanding, based on your response, that none of the new board members have lived experience of disability? 

MR HYLAND: Yes. That's correct. 

MS EASTMAN: Did Sunnyfield seek to actively recruit board members with lived experience of disability? And I'm stressing "lived" to make the distinction between board members who may have family members with disability. 

MR HYLAND: Yes, I have read the report and I understand the Commission's definition of "lived experience". I don't know the answer to that question. At that time, I was not here when those decisions were made. And, sorry, just to clarify a point, when you said 10 new members – 

MS EASTMAN: I think we have worked that out from looking at the – 

MR HYLAND: Board members, yes. 

MS EASTMAN: Board members, yes. And I think one of the findings was also finding 24 about the composition of the senior leadership team and the representation of people with lived experience of living with disability on the leadership teams. And are we right to understand from the response that no member of the senior leadership team has lived experience of disability, but one has a family member with disability? 

MR HYLAND: That's correct. 

MS EASTMAN: Again, was there a – and, again, this might be before your time. But do you know with respect to any recruitment into new senior leadership team positions that there's been an active approach to recruit people with disability with relevant experience? 

MR HYLAND: I don't know about that, but it's certainly part of my process going forward. 

MS EASTMAN: The recommendation also touched on the role of directors and board members being more connected to the way in which services are delivered and whether the board members had the opportunity to meet with the residents and their families from time to time. Are we right in understanding that the board has – members of the board, and particularly the chair of the board, have undertaken many more visits since the hearing to the services? 

MR HYLAND: That is correct. 

MS EASTMAN: Right. I want to just briefly then, Commissioners, turn to the recommendations. I think you've got a copy there. Commissioners, there is some aspects of the recommendations that concern a mediation, and I do not wish to go into the detail of the mediation. There's some information that has been provided that is confidential to the Royal Commission. So if I sound evasive in the way I'm going to approach the recommendations, I don't intend to be evasive. But I'm just conscious of not trespassing into those areas. I think we have dealt with recommendation 1. Recommendation 2 was that: 

Sunnyfield should discuss with Eliza revising its service agreements for Melissa to ensure those agreements are consistent with Melissa's rights and her exercise of choice and control. 

I've asked you some questions about the capacity to negotiate the agreements, but do you know if Sunnyfield acted on the Commissioners' recommendation? 

MR HYLAND: Yes, I was part of the mediation. This was discussed across a series of three meetings. 

MS EASTMAN: I don't want you to go into the detail of the mediation. 

MR HYLAND: Sorry.

MS EASTMAN: But are you able just to respond as to whether or not Sunnyfield has acted on the recommendation? 

MR HYLAND: We have acted on the recommendation. 

MS EASTMAN: Okay. Recommendation 3 was that: 

Ms Cuddihy and appropriate members of the board should meet with Melissa, Carl and Chen...

They are the three residents at the Western Sydney home: 

...and their families to: apologise for Sunnyfield's failure to prevent the violence and abuse they endured; and discuss what redress and/or additional supports and assistance they require. 

Now, with respect to this recommendation, are we right in understanding that Ms Cuddihy sent a written apology to the family and to the residents as well?

MR HYLAND: That's correct. 

MS EASTMAN: Are we right in understanding that in terms of an appropriate member or members of the board, that there have not been members of the board who have met with Melissa, Carl and Chen, or their families, to apologise or discuss redress? And, again, just put the mediation to one side. 

MR HYLAND: No, the chair of the board has definitely met with the families to apologise. 

MS EASTMAN: Okay. So as far as you are aware, the chair has had that opportunity. 

MR HYLAND: That's correct. 

MS EASTMAN: In terms of redress, I understand these are issues that are the subject of the mediation. But I did want to ask you about one issue, and that was during the course of the hearing one of the issues raised by Eliza and Sophia was their view that if there was CCTV installed at the residence, then some of the conduct that occurred might have been able to be detected and acted on at an earlier point in time. And the evidence at the hearing went a little back and forth on whether Sunnyfield had a position on the installation of CCTV. And if you have read the whole of the material, you may recall that the then NDIS Quality and Safeguards Commissioner, Graeme Head, was asked about the policies in relation to the use of CCTV. Can you tell us whether or not there has been any developments in relation to Sunnyfield's position on the use of or the installation of CCTV in the residence? 

MR HYLAND: There has been – on my review of the material, there has been a number of conversations and debate about the use of CCTV. The matter is somewhat vexed. I can see the position of the staff and privacy, and I can see the position of the families wanting to ensure safety. The – we are really seeking guidance on what to do in this matter. So we have not – so the answer is no, we have not developed. We are still waiting for regulatory advice. 

MS EASTMAN: Okay. I just need to clarify things, and that's my misreading of a note that I had. It's not 10 new members of the board. Sorry about that. It's 10 members of the board – 

MR HYLAND: Correct. 

MS EASTMAN: – some who are new. So I think I misread ‘now has 10 members’ as new ones. That's that clarification. All right. I have covered, albeit fairly briefly, the key findings and the recommendations. You, as the new CEO, have obviously had an opportunity to, as you have said, look at Sunnyfield's operations and bring your perspective to the way in which Sunnyfield engages with its clients and its residents, with the families and with supporters. Having read the Commissioners' Report, have you identified any other areas that you think Sunnyfield needs to address going forward to better improve the human rights of the residents but also steps that will eliminate violence, abuse, neglect and exploitation within Sunnyfield? 

MR HYLAND: First of all, I would like to say that my observations are that the leadership of Sunnyfield have reflected deeply on the findings and have learned many lessons. The one improvement that I think is going to make the most difference is what I would call an inclusive governance model, which means the voice of our clients are included at every level of the organisation, from the board through to senior management, through to middle management and the front line. And I have been working with the board on developing that model and how to execute that model, and that will be my biggest priority, to make sure that we actually have the systems and structures to capture that voice and to make sure that that voice is brought into our practice and that our responses are effective and appropriate. 

MS EASTMAN: Thank you. Well, they are my questions. I will have some more for you tomorrow morning on a different topic. But the Commissioners may have some questions. 

CHAIR: Thank you. Mr Hyland, when did you read this report for Public hearing 13? 

MR HYLAND: When – 

CHAIR: When did you read this report – first read it? 

MR HYLAND: Well, I have read it a couple of times, probably back a year ago when it was published and then more recently. 

CHAIR: Did you read it before you took up your position that you now hold? 

MR HYLAND: I did. 

CHAIR: What view did you form on the basis of the report concerning the organisation that you were about to head? 

MR HYLAND: My view was that the organisation really needed to work on understanding the voice of its client. It needed to work on its culture, and it needed to work on its communication. I think – yes, that's – I will stop there. 

CHAIR: To your knowledge, has the board provided, whether internally or externally, a formal response to the findings in the report and the recommendations? 

MR HYLAND: By "a response" you mean an action plan or a – 

CHAIR: I mean a written response to the report, which could be the form of an action plan. It could be in the form of a commentary. It could be in the form of a mea culpa and "we are going to do better". I don't know what the written form might be. 

MR HYLAND: Okay.

CHAIR: I want to know whether there has been a formal response by the board. 

MR HYLAND: There has been a – 

MS EASTMAN: Sorry, Chair. Can I just clarify your question so there's no confusion, whether you are asking about a public statement? Because as you will be aware, there have been Notices directed to Sunnyfield on these issues which are confidential to the Royal Commission. 

CHAIR: No, I understand. I'm talking about – I said either public or within the organisation. I'm not talking about Notices. I'm talking about a formal response to staff in the light of the Public hearing report or a public statement, not to this Royal Commission through Notices. 

MR HYLAND: I – I don't believe there is a public statement or a private statement to staff. 

CHAIR: Thank you. We have clarified, I think, the membership of the board. There are now 10 members. Since the report has been published, have any members of the board left and been replaced? 

MR HYLAND: So two – two new board members have joined, and I believe two have left. I will have to just check that. 

CHAIR: May we take it that Ms Ingram is still the chair? 

MR HYLAND: Correct. 

CHAIR: Is Clayton Utz still the solicitor for the – 

MR HYLAND: Correct. 

CHAIR: And there is remunerative work that still goes from Sunnyfield to Clayton Utz? 

MR HYLAND: Correct. 

CHAIR: All right. Thank you. They are the questions I wanted to ask. Commissioner McEwin? 

COMMISSIONER McEWIN: No. Thank you. 

COMMISSIONER BENNETT: The opening discussions or questions that you had from Ms Eastman focused very much on this house and the changes, and you said that there is new leadership in the house and there's stabilising and there's a new – how have you extended what was that experience and that finding across the quite considerable holdings of Sunnyfield so that it's beyond just stabilising and changing that house arrangement? 

MR HYLAND: So there are – for context, there are 49 residential homes in Sunnyfield's service offering. I have visited about 40 per cent of them. My observations are that the lessons that have been learned have been implemented – partially implemented in most of those – in most of those properties. I can't say for all because I haven't visited all of them. But there has been a significant investment in training, in improved supervision, improved communication and protocols with family, and quality, risk and safeguarding. 

COMMISSIONER BENNETT: So you can't guarantee that that standard has been met in that large holding of houses that you have? 

MR HYLAND: No, I can rely on audit reports. I can rely on audit reports – we have done extensive audit reports that have been through the whole set of services.

COMMISSIONER BENNETT: Does that include looking at complaints that you receive in other houses beyond this house? Have you been looking and tracking those complaints and seeing what it tells you? 

MR HYLAND: Absolutely, yes. I – yes. I observe all – all complaints are reported to me. We track and monitor and trend and investigate and follow up. 

COMMISSIONER BENNETT: Much of your holding are larger homes, aren't they? They are five – four, five-bedroom homes? 

MR HYLAND: Four and five are the biggest proportion. There are some three bedroom. 

COMMISSIONER BENNETT: Are you still acquiring houses of that size, or are you looking at smaller arrangements that might better meet the needs of individuals to live differently? 

MR HYLAND: So one of the things we are currently talking about and setting about is to speak to the clients and ask them what they want before we start to invest in more services. 

COMMISSIONER BENNETT: And that those decisions are being made before you acquire more? 

MR HYLAND: Yes. Well, the decisions that are made as part of – as part of acquiring. 

COMMISSIONER BENNETT: Thank you. 

CHAIR: Thank you very much. Thank you, Mr Hyland, for coming and giving evidence today and for the responses to the Royal Commission. As Ms Eastman has indicated, you will return tomorrow for another panel, I think it is. 

<THE WITNESS WITHDREW

MS EASTMAN: Thank you. That concludes the evidence today. If we could resume at 10 am Brisbane time tomorrow. 

CHAIR: Thank you very much. We will resume at 10 am tomorrow. Thank you.

<ADJOURNED 4:39 PM TO WEDNESDAY, 15 FEBRUARY 2023 AND 10 AM