Disabled workers win $100m fair pay case: a 2016 good news story

Despite the government’s extraordinary attempts to defeat it, intellectually disabled workers have won a claim for about $100m in unpaid wages

2016 has been by any standards, an awful year. A volatile and hateful politics swept through the United States and Europe. Neoliberalism fell over and took the left with it. A who’s who of brilliant and talented artists died. Leonard Cohen, an 80-year-old Jewish Buddhist and genius fulfilled his sublime pledge to his former muse, Maryanne, to follow her into death.

Closer to home, toxic campaigns raged against the human rights commissioner, Gillian Triggs, and in favour of the human right to engage in racist speech. As the planet continued to fry, an increasingly dumb, coal-addicted nation sat on its angry fists.

2016 was also the year that an unprecedented number of wage fraud scandals were exposed, embarrassing blue chip companies including Woolworths, Caltex, Coles and Myer. The scandals revealed that grossly exploited students and migrants on visas were the major victims of wage fraud in one of the richest countries in the globe.

Amid all of this detritus, it’s important to celebrate the victories. 2016 was not a complete write-off. David had at least one notable win against Goliath. On Friday 16 December 2016, a federal court decision heralded a new era for workers with intellectual disabilities in Australia. The decision to approve a settlement of a claim for approximately $100m in unpaid wages came in the wake of a long-running dispute about wage policy for employees working for Australian disability enterprises, the lowest paid workers in Australia.

When the federal government introduced a new wage setting tool called the Business Services Wage Assessment Tool (BSWAT) in 2004, it effectively cut wage rates for the workers by more than half. From that point on workers were paid in some cases less than $1 per hour. Shortly after, a campaign for wage justice began. At the heart of the campaign was a court case asserting that the BSWAT tool illegally breached disability discrimination laws.

The Abbott government went to extraordinary lengths to defeat the legal claim. It appealed to the full federal court and then another attempted another before the high court. When these attempts failed, the government sought permission from the Human Rights Commission to continue to pay the workers at Dickensian wage levels in contravention of anti-discrimination laws. That ruse failed too.

Then followed an attempt to subvert the class action by an attempt to direct dealing with the disabled workers to try to coerce them into a quick cheap settlement. It too was scuttled.

The government turned to the parliament to try to defeat the case, making several attempts at passing legislation intended to limit the underpayment bill to half of what was owed. Our motley crew of disability advocates and lawyers turned into part-time lobbyists, traipsing the floors of Parliament House to meet and persuade crossbench senators.

Desperate to win the parliamentary vote, the government and several Australian disability enterprises launched a scare campaign asserting that if the class action was successful, the workers would lose their jobs. Senator Mitch Fifield claimed “a very real possibility of job losses” if the case was successful and enlisted the support of some influential ADEs in prosecuting the campaign. The ADE website duly detailed how “scores of businesses employing people with a disability could be forced to close and thousands could lose their jobs as a result of a legal ruling which found some workers had been discriminated against”.

At the height of the scare campaign to block the class action for workers, the staff in my office were in tears. Parents of the workers deluged our office with abusive phone calls, accusing us of jeopardising the jobs of their children.

Why would parents attack those who were trying to improve their kids’ remuneration? A visceral fear, cynically stoked by the federal government and a number of Australian Disability Enterprises, that their kids were about to be sacked.

We held our ground and pursued the battle in the federal court, the parliament and in the court of public opinion. We reasoned that if workers with disabilities were going to be paid at Dickensian wage rates, then the world needed to know. For too long, the lives of the disabled have been invisible to the rest of us.

Eventually, the Turnbull government recognised that we were not going to relent, commenced mediation and negotiated a terrific settlement. The court approval of the settlement of the claim is a victory for the lowest paid workers in the country and a salutary reminder that improved wages and conditions for employees are never gifted but are the product of dogged persistence, protracted conflict and staring down the inevitable and loud threats of calamity.

Workers who were assessed under BSWAT and worked at an Australian Disability Enterprise can register for the payment scheme by calling 1800 799 515, visiting the website at https://bswat.dss.gov.au/ or emailing bswatpayments@dss.gov.au to be sent an application form to complete.

This article originally appeared in The Guardian.