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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

They’re the people who are supposed to watch over the support system for Australians with a disability, and ensure the care they’re receiving is good.

But the very people doing this job, at the Quality and Safeguards Commission of the NDIS, could be in an unsafe workplace.

And the strangest part of all: the leadership of the Commission has allegedly been pretending there isn’t a problem.

Today, senior reporter for The Saturday Paper, Rick Morton, on how the organisation that oversees the quality of the NDIS was gaslighting its own staff, and what that means for those who rely on the service.

It’s Thursday, June 8.

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RUBY:

Rick, you've been looking into what's happening at the place that regulates the NDIS. So the Quality and Safeguards Commission. Tell me, how did you get onto this story and what did you find?

RICK:

So I got a tip off on my email a couple of weeks ago, overnight, which was very interesting and seemed to be very well informed. And you can usually get a sense with these things that the person knew what they were talking about. And it was about the National Disability Insurance Scheme Quality and Safeguards Commission, the regulator in the space for all disability service providers and workers and, you know, trying to keep people with disability safe. Right.

Archival tape – NDIS Corporate Video:

“The NDIS commission regulates all providers in the NDIS market…”

RICK:

And it was about dysfunction at that regulator.

Archival tape – NDIS Corporate Video:

“We will listen, we’ll talk, we’ll discuss, we’ll facilitate, and we will be clear.”

RICK:

Particularly some fairly troubling allegations of lack of accountability and transparency — which he'd want from a regulator — in relation to this Comcare notice. Now, Comcare is the federal workplace health and safety regulator — regulator v regulator — and they sent a notice to the NDIS commission that says “you are an unsafe workplace.” This is a notice to improve. Your colleagues, your workers, your employees are being severely and extremely overworked. You don't appear to have addressed this despite your knowledge of it for the last three years. Now you have to do something about it.

This is really important because this is a regulator in the biggest, kind of, care sector in the country with the NDIS. Who apparently is unable or unwilling to model best practice behaviour itself. While demanding that our providers, and rightfully, demanding that of providers, I should say.

And the reason I was interested in that is not so much that they got the notice. It happens from time to time in federal agencies, but it was the commission's response to getting that notice, which was, you know, startling, to say the least. And that's what I found quite concerning as a journalist, and then wanted to look into it further.

RUBY:

Right. Okay. So the Workplace health and safety regulator, they issued this notice to the commission saying that they need to address unsafe workloads and demands on the agency's staff. And, you know, these things have been happening, but the commission has been doing nothing to, sort of, fix what's been going wrong, and it needs to. So, what should have happened once that notice was issued?

RICK:

Yeah. So under the law, anyone who's been given any improvement notice has to put that notice on display immediately, or as soon as, what they say, as soon as possible.

The actual notice itself says, you know, a brief description of how the provision is being, or has been, contravened and it says, number two, the concerns were that the National Disability Insurance Scheme, Quality and Safeguards Commission Risk Management System, in relation to psychosocial hazard of work demands — specifically extremely high workloads — is ineffective or failing, and that the Commission had been aware, for the past three years, of negative health impacts of prolonged and extreme exposure to work related stress from these work demands. And it goes on. There's a lot more detail in it, but that's essentially it.

Now, if someone who gets such a notice appeals it, that notice no longer becomes effective until that appeal is heard. But there's a gap between when officially, on the 27th of April, according to the commission, they get this notice, and on the 1st of May, when they appeal it. And in that gap, they don't put it on display. They tell health and safety representatives, the HSRs, and they say, we'll put it on display, and then nothing happens. It's essentially kind of disappeared and staff start to ask questions.

RUBY:

Okay. And so how does the commission respond then, to those questions? And what is essentially, this legal warning that it's gotten about the workplace?

RICK:

Yeah, I mean, they, the commissioner, Tracy Mackey, who's been in the job since January last year, reportedly denied the existence of the document completely.

RUBY:

Right. She says it doesn't exist.

RICK:

She said it doesn't exist, which is different to saying it's not in effect, which at the point in time we're talking about, which is May 10 of an all staff meeting, Tracy Mackey leads it, she's the commissioner. It's a Q&A about the new budget allocation. They got some new resourcing, which is obviously very important. But a staff member asked the question in the chat, and I've got a screenshot of that chat, and they just say, “Will this help us deal with the Comcare notice?” And I've spoken to five people now, who independently recall that meeting, who all said that the Commissioner responded with words to the effect of “there is no notice. If there was a notice, I would give it to you.”

Now, at this point in time, not only was there a notice, but they had appealed it. And certainly as a regulator, you know, you can certainly argue technically that she, because there was no notice in effect, she didn't have to discuss it with the staff. But the staff that I've spoken to feel that this fits into a pattern of procedural unfairness within the workplace, where they feel like they're not being told the complete truth about things, which is a problem if you're working for a regulator that is meant to be demanding the complete truth, and transparency, and full accountability from the disability sector that you're regulating.

So that's the beginning of the kind of questions about the commissioner's role in all of this. So it’s really weird, for a start, that the commissioner would deny the existence of this document at all. But particularly weird given that it had already been reported in the Canberra Times, five days earlier. The union, the Commonwealth Public Sector Union, knew about the notice. They knew that it was being appealed, or had been appealed. So this is not something that the Commission could ever have hoped to have, you know, denied offhand. So it just kind of struck staff as being a little bit… a little bit of subterfuge, and kind of stalling, I guess. Because the other issue, of course, is that the very next day there was a very large upload to the intranet of frequently asked questions. Buried near the bottom of that was a question about… the same question that was asked in the town hall. But this one says, different language, it says “there is currently no improvement Notice in effect.”

RUBY:

Which is true, I suppose.

RICK:

Which is true. And then it goes on weirdly, to apparently blame, you know, other outside third parties for trying to lobby Comcare about workplace safety. It doesn't name the union, but you can almost be sure that that's what they were talking about because the union made a submission to Comcare, which is, as I understand it, a perfectly normal part of the process. But the NDIS Commission didn't seem very happy that the union was advocating for its own workers.

RUBY:

Okay, so Rick, staff at the Commission, they definitely know about this legal notice. I mean, it's been publicly reported on in the media days earlier. The union is aware of it. So it's fair to say it's public knowledge. So what do these workers think then, when the agency that they work for starts to deny its existence?

RICK:

Well, they think that it's a continuation of what they've already seen, which is an unwillingness, in their view, to deal head on with the actual problem, which is that staff feel unsafe. They are certainly overworked. And I don't just mean in your usual like, you know, a lot of people work hard, right? And it's all valid. But in this case it's extreme. And I know that because of some of the stuff that I've been hearing that I haven't been able to report yet, but it's extreme. And it's really important work, these people are on the front line hearing reports of really terrible cases of abuse, or misconduct, or neglect. But also just kind of dealing with the day to day reports of people who are confused, or maybe scared, or don't quite know how the system works, and trying to keep on top of that and then also fix these things, right. That's why this commission matters, and that's why the staff in particular matter. And to know about this notice, as the staff clearly did, because they asked about it, and then to have its existence denied, you know, as one person said, you know, “the commissioner thinks we're all stupid. The behaviour doesn't make any sense.” They said to me. Another person I was talking to who knows about, you know, these various interactions between the commission, between the staff, between Comcare, said that the conduct of the commission, which remember is a regulator, was some of the worst that they had seen.

RUBY:

Right. So it sounds like things are really beginning to deteriorate. What happens next at the Commission?

RICK:

So, it's pretty clear that things have become a little bit acrimonious between the commission and the CPSU. And then, of course, the union ramps things up, as they want to do. So the Commission's denying the existence of this notice. The CPSU says, “alright then we're going to use our power, our right of entry powers, who are going to inform the Commission the day before we plan on going out there, and we're going to ask for the notice, we're going to ask for them to hand it over.” They told them the day before. The next day the NDIS Commission responds by engaging external lawyers, the law firm Holding Redlich, and essentially blocks the union from getting access to the offices.

So the way it was put to me by people in the know, was that this kind of struck them as being a deliberately provocative response, an aggressive response, and unnecessarily expensive response. Certainly for the NDIS Commission, which has been underfunded, and maybe emblematic of the paranoia or anxiety within the Commission about public perception of how they're doing their job.

RUBY:

We’ll be back after this.

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RUBY:

So, Rick, it sounds like what's happening is there is this, kind of, standoff emerging at the NDIS regulator. The regulator has been served this legal notice about being an unsafe workplace. They're appealing that. But while they're doing that, they're also seeming to kind of deny the existence of that notice to their own staff. The union, though, knows about the notice, and so they say, “Well, we're going to come into your office to actually get it.” The commission responds by trying to get outside lawyers to stop that from happening. So as things escalate, what happens next?

RICK:

Yeah. So the union goes straight to the Fair Work Commission. They apply with the commission for the resolution of the right of entry dispute. And the reason they give the Fair Work Commission is because they have a reasonable suspicion that a contravention of the Work Health and Safety Act had occurred, and that the alleged contravention was that officers of the NDIS Commission had made false or misleading statements to employees and Health and safety representatives. And in denying that improvement notice — that had been issued by Comcare — those offices that the Commission had misinformed their employees about their ability to participate or initiate in processes relating to the improvement notice under the Workplace Health and Safety Act. Including the requirement for the improvement notice to be displayed and communicating with Comcare in relation to the notice, and seeking a review of the notice and consultation of all the rest. You know, this is a right that employees have to take part in that process. It is a right enshrined in law, and it's one that you could argue was denied by the process that was in place around this particular notice at the NDIS Commission. Now, once that application was lodged by the union to the Fair Work Commission, the NDIS Commission is kind of forced to come to the table a little bit because up until this point they’d been denying reality. And now, of course, they have to back down. It's quite embarrassing. Their lawyers agree to settlement terms, essentially, with the union in return for the union dropping that application. And the settlement is, “okay okay we will put up the notice, even though we don't have to.” they say. We will show the notice to our staff, and we will update them with more information on our intranet. And that's what it took. And this, by the way, is almost three weeks after they got it in the first place.

RUBY:

Okay. So the notice is finally published, but I mean, surely the three weeks of back and forth, that must not look good or feel good to the employees of the commission, to kind of watch all of this unfold at a workplace in which, they're perhaps, already feeling like there are serious problems, to then have this, kind of, response from the commission. I mean, surely that would only make things worse, not better.

RICK:

Yeah, So things were already pretty bad at the commission. They had been for years, as we saw in that Comcare notice in the first place, at least three years, right. Now in 2021-2022, according to their own internal analysis at the Commission, 26.1% of the entire agency's ongoing headcount quit the organisation, some of them without jobs to go to. That is an enormous number for staff turnover. It's particularly enormous when you realise that they're dealing with the pointy end of disability regulation, and trying to keep people with disability safe, particularly during COVID, right?

One staff member told me that it's the most unstable work force that they have ever encountered, and in fact their words were “it’s just carnage.” A separate employee that I was chatting to, says the conduct that's coming out of the leadership team, at the commission, is very similar to the behaviour that some of the disability providers they had been trying to regulate are showing. You know, they said it's particularly demoralising for staff with disabilities. And that person said this is behaviour staff see from providers on a regular basis, and just like providers there won't be any repercussions. It's absolutely sickening how hypocritical it is.

RUBY:

Yeah. I mean, I think it's important to remember this is the agency that's supposed to be keeping an eye on the NDIS. So if it is showing these kinds of signs of dysfunction, what does that actually mean for those who are in the NDIS, people with disabilities who rely on the NDIS?

RICK:

Precisely. And it's not good. I know it's not good.

We've had some pretty big cases already that have been convicted of fraud, people and directors of NDIS providers, providers who have been banned added to the register, workers going to jail. And all of these people have been caught by a very small team within the NDIS Quality and Safeguards Commission, almost exclusively, right.

I know that there have been serious cases of assault — including sexual assault — which were missed completely by the NDIS Commission, and it's not because of the staff on the front line, who again, have been severely overworked, and under-resourced, and also under utilised in terms of, you know, the best use of their time and effort, because of a broader cultural problem at the Commission. So what all of this does is put people who are NDIS participants at risk, when this is the precise opposite of the outcome that you want from the NDIS regulator.

And I was talking to the CPSU deputy secretary Beth Vincent Pietsch, who told me that the notice should have been this wake up call that at least generated some soul searching or substantial change, in her words. And she said, you know, this was not the case.” She said “management refused to provide workers with the improvement notice. They initiated a formal challenge of the improvement notice, and held an all staff meeting with the existence of the improvement notice was denied. What hope is there for change? And certainly what hope is there for behavioural change among disability service providers when they can point to the regulator and say, “look, they're not doing it”.

So you know, Bill Shorten wants to save about $15 billion over the next four years from NDIS projected expenditure. And to do that he keeps, kind of, talking about the fact that this is going to focus on people who are doing the wrong thing, particularly providers, right. He doesn't want to scare the horses when it comes to disabled people who are just trying to get through, right. And the NDIS is meant to be there for them.

So there was an extra $142.6 million in this year's budget for the Commission. And if I was in charge, I would start looking at the culture of the place to begin with. Because if you're going to invest a lot of money in this place to do the job, you've got to make sure that it's being spent properly, and that the staff are being treated properly. Because otherwise the outcomes are not going to be good for anyone, I don't think.

RUBY:

Rick, thank you for your time.

RICK:

Thanks Ruby.

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RUBY:

Also in the news today…

The amount that Australian households are able to put into savings has reached its lowest level in nearly 15 years.

The household savings ratio for the first quarter of this year, released yesterday, was at its lowest point since the June quarter of 2008 – in the middle of the Global Financial Crisis.

And…

A band of heavy rain and severe thunderstorms is sweeping across the south-east states, which is unusual for June.

The rain comes as a surprise after the Bureau of Meteorology issued a dry outlook for this month, just days ago. As well as forecasting a 70 percent chance of an El Niño weather pattern developing this year, raising the risk of heatwaves and bushfires.

I’m Ruby Jones, this is 7am. See you tomorrow.

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