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The agency that regulates the NDIS has engaged lawyers in an attempt to prevent being served with a complaint about its own dysfunctional workplace culture. By Rick Morton.

Exclusive: NDIS regulator in chaos

A middle-aged man speaks into microphones that surround him on the street.
The minister for the National Disability Insurance Scheme, Bill Shorten.
Credit: AAP Image / Diego Fidele

The NDIS regulator called in external lawyers to try to prevent an unsafe workplace notice being given to its own staff after a bizarre series of meetings in which senior executives denied the legal letter even existed.

The NDIS Quality and Safeguards Commission, which is charged with banning unscrupulous disability service providers and is central to the Albanese government’s plan to find $15 billion of savings in the National Disability Insurance Scheme, potentially breached workplace laws in its response to the letter and is now the subject of a simmering internal revolt.

On April 22, the commission was named in an official “improvement notice” from the national work health and safety and workers’ compensation authority, Comcare. A severe lack of staff and a persistent unwillingness or inability to address workloads had fomented psychological distress within the organisation, it said.

What followed this legal notice is a series of events in which the NDIS commission attempted to either keep the substance of the letter from its employees or denied any such letter had been received.

As a result, the public sector union has warned the commission is “being gravely mismanaged” and leadership needs to change.

Comcare advises in its notice that the “person to whom an improvement notice is issued must display a copy of the notice at or near the workplace (or the relevant part of the workplace) at which work is being carried out that is affected by the notice”.

“The person must do so as soon as possible, and the notice must be displayed in a prominent place. Failure to comply with the display requirements is an offence,” it says.

By May 1, officers with the NDIS commission wrote to health and safety representatives within the agency to advise them an improvement notice had been issued. It said an all-staff email would be sent to advise employees of its contents and the notice would be displayed in offices. The Commission says it first told the representatives on April 27.

Later that same day, the commission began a formal challenge to the notice. The notice was never communicated to staff or displayed, and officers argued it had no effect while being appealed against, even though by now it was already more than a week old. The commission also argues the notice was incorrectly addressed.

Matters became even stranger, however.

On May 10 an all-staff virtual “town hall” meeting was held between NDIS Quality and Safeguards Commissioner Tracy Mackey and employees of the agency to discuss a sweeping restructure and $142.6 million in additional funding over two years to address critical shortages.

When Mackey opened up for questions, an employee wrote in the chat box: “Will this address the issues highlighted in the improvement notice that was issued by the Comcare?”

The Saturday Paper has seen photos of this chat window and has confirmed with four separate staff members that the commissioner denied there was any notice and said words to the effect of: “If there was a notice, I would give it to you.”

Many on the call struggled to see how this was possible, given the document had already been reported in the press and, further, the Community and Public Sector Union (CPSU) had independently confirmed the commission intended to argue the notice, emailing its members a day earlier to alert them.

Curiously, the Canberra Times report that originally revealed the existence of this notice was never included in the NDIS commission’s daily pack of media monitoring reports. Staff found it later.

Unlike other town hall meetings, executives say this event was not recorded and could not be uploaded to the staff intranet.

The Saturday Paper has seen a Frequently Asked Questions update that was loaded onto the commission’s intranet the following day, May 11, after the town hall meeting. In it, the commission obscures the situation: “There is currently no Improvement Notice in effect.”

Then, it appears to blame the union for “lobbying” Comcare. “Comcare, as a regulator, is required to make decisions without undue outside influence,” the answer says.

“It is not appropriate for us, or any other party to seek to lobby (or otherwise influence) Comcare in order to gain a particular outcome.”

Staff were puzzled by the broadside.

“That is the thing that shocked us the most. She [Tracy Mackey] thinks we’re all stupid,” an employee who is not authorised to speak publicly tells The Saturday Paper. “None of the behaviour makes any sense.”

Another source with knowledge of the interactions between the commission, its staff and Comcare says the conduct of the commission was “some of the worst” they had seen.

“It is reckless and appalling, the sheer carelessness of it,” the person says.

“Their minister is Bill Shorten. He has a background in health and safety. He would be mystified by it.”

The conduct discussed by senior officers is part of a pattern of behaviour, they said. In one particularly serious encounter, a screaming match between senior officers and senior legal staff erupted in front of other employees.

Tensions between the CPSU and the commission are even greater. On May 11, the union informed the commission of its intention to attend the Penrith, Sydney, offices and obtain a copy of the improvement notice which, according to Commissioner Mackey, did not exist.

This was denied by the commission after it engaged external law firm Holding Redlich to block access by the union.

A union delegate lodged an application with the Fair Work Commission on May 17 to deal with the right of entry dispute because it had “a reasonable suspicion a contravention” of the Work Health and Safety Act had occurred.

“That alleged contravention is that officers of the [NDIS commission] made false or misleading statements to employees and HSRs [health and safety representatives] on 10 May 2023,” the application says.

“In denying an Improvement Notice had been issued by Comcare, the [officers] misinformed these employees and HSRs about their ability to participate, or initiate, in processes relating to Improvement Notice under the WHS Act, including the requirement for Improvement Notices to be displayed and communicating with Comcare in relation to the notice and seeking a review of the notice and consultation on health and safety matters affecting workers.”

The NDIS Quality and Safeguards Commission was forced into an embarrassing backdown after its lawyers agreed to settlement terms with the union in return for them dropping the Fair Work application. Finally, it published the notice.

“It is important to note that the Commission advised Health and Safety Representatives (HSRs) about the Improvement Notice and the application for Internal Review promptly,” an update to the internal intranet on May 22 says.

“While there is no requirement (confirmed by Comcare) to display the Improvement Notice, as it is not in effect, the Commission has decided to make both documents available. The documents have been redacted to remove names of Comcare officers. The Commission has fully cooperated with Comcare throughout the process.”

The Saturday Paper understands there was a requirement to display the notice before it was appealed against, which had the effect of temporarily suspending its status, although denying its existence altogether was never allowed under law.

In any case, Comcare rejected the appeal by the NDIS commission and its original notice is now in force again.

Late on Wednesday May 24, at 10.30pm, Commissioner Mackey wrote to all staff and acknowledged the “Commission continues to work closely with Comcare, as we have over an extended period, to ensure the safety and wellbeing of our staff”.

“It should be noted that the Commission has managed the process with Comcare and that external legal advisors were not engaged in relation to the Improvement Notice,” Mackey wrote in the late-night email.

“The Commission made a request for an internal review of the Notice, and today Comcare notified the Commission that it has decided to uphold the Improvement Notice. The Notice has been displayed in all Commission offices as of Wednesday afternoon.

“Over the past two weeks there have been communications circulated by some staff and external parties that are not always accurate.”

CPSU deputy secretary Beth Vincent-Pietsch tells The Saturday Paper the notice should have been a “wake-up call” that generated “substantial change”.

“This was not the case,” she says. “Management refused to provide workers with the improvement notice, initiated a formal challenge of the improvement notice, and held an all-staff meeting where the existence of the improvement notice was denied.”

A core issue is what Comcare identified as “extremely high workloads” for staff at the agency responsible for regulating the entire NDIS provider sector, an analog to the beleaguered aged-care watchdog.

When Comcare inspected the commission late last year it found a high volume of well-documented staff concerns and complaints about work demands and requested information about how the commission was handling them. Of the commission’s response in February this year, Comcare said it found no evidence any strategies or “actions” previously identified to address workplace risks had been implemented or were being implemented “either fully or in part”.

One strategy the commission hoped to sell to Comcare as a mitigating factor in its investigation was a “triage function” within the complaints division. Comcare noted no evidence was provided about when this service model “would commence (or had commenced)”.

In this financial year, the NDIS commission had an average staffing level of 431 positions responsible for nearly 18,000 registered NDIS providers. In the last quarter alone there were 5700 reportable incidents, more than 50,000 phone calls and 439,322 instances of unauthorised restraint against disabled people. This is just a fraction of the commission’s workload.

The Australian Public Service employee census last year identified 82 per cent of staff who reported workloads above their capacity, a six-point increase from the previous year.

In 2022, the NDIS commission ranked the second-worst agency in the public service – 97 out of 98 – against the metric of wellbeing and support policy and procedures.

In January, the CPSU made a submission to Comcare to assist its investigation of the NDIS commission.

It said the commission’s “non-compliance has increased the risk and likelihood workers will suffer work-related illness and or injury due to impact of work-related stress on their health”. The submission stated noncompliance with duties under the Work Health and Safety Act were “egregious”.

The submission noted that in October and December last year the union had offered to help the NDIS commission develop a risk management process.

“This offer has not been accepted or rejected, rather the Chief Operating Officer wants more information,” the submission to Comcare says.

“This response continues the department’s and officers’ long approach of either denial of issues or delay of due process. This pattern of behaviour is further evidence to the need for Comcare to exercise formal compliance powers to ensure a timely and effective remedy to noncompliance.”

A future workforce strategy published by the NDIS Quality and Safeguards Commission in February contains a revealing fact, buried in an otherwise dry technical document.

In 2021-22, 26.1 per cent of the entire agency’s ongoing headcount quit the organisation. As one staff member tells The Saturday Paper: “It’s the most unstable workforce I have ever encountered. It’s just carnage.”

Another employee says the conduct is similar to that of some of the providers they are trying to regulate. They say it is particularly demoralising to staff with disabilities. “This is the 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.”

A spokesperson for the commission said it didn’t display the first improvement notice sent by Comcare because it “had the wrong address” on it. It was sent to the commission “care of” the Department of Social Services.

“No one at the commission is arguing that there is nothing to do. None of us are saying that everything is perfect,” the spokesperson said.

“What we’re saying is that we have work under way, we have had work under way for some time, and that we will continue to do that work.

“And we will work with Comcare to make sure that we have done everything we need to do to align with their expectations.”

This article was first published in the print edition of The Saturday Paper on June 3, 2023 as "Exclusive: NDIS regulator in chaos".

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