Australia’s most vulnerable workers are being cruelly treated by the government.
According to the promotional material for Australian Disability Enterprises, they are places where people with disability are given “the opportunity to have a real job, with real wages, in a real business”.
Giving people with a disability the dignity that comes with work is a worthy aspiration, but the truth is that thousands of disabled workers at these enterprises around Australia are not getting real wages for what they do. In fact, many with an intellectual disability – some who earn less than $1 a day – have been the victims of unlawful under payments in breach of anti-discrimination laws.
Intellectually disabled employees, some of the lowest paid in our community, do not have a loud voice in our increasingly shouty public discourse. This helps to explain why few people are aware of the federal government’s extraordinary attempts over recent years to prevent these employees from recovering their lawful pay entitlements.
In 2012, the Full Court of the Federal Court found that the method used for assessing wages at these enterprises unlawfully discriminated against workers with intellectual disability because it tested skills that the workers were not required to use in their jobs and tested them in a way in which they could not adequately deal.
The method used is known as BSWAT (the Business Services Wage Assessment Tool) and it was developed and promoted by the Commonwealth. The use of BSWAT reduced the wages of these employees.
The Commonwealth tried to appeal the Federal Court’s decision in the High Court, but in May 2013 the High Court refused leave to appeal, stating: “We see no reason to doubt the conclusions of the Full Court”.
Despite this legal outcome, no steps were taken to pay the employees the balance of their underpaid wages.
Instead, the Commonwealth then applied to the Australian Human Rights Commission for an exemption from the Disability Discrimination Act giving it permission to continue discriminating against the intellectually disabled employees for three years while it consulted and developed a new tool to assess wages.
This application was rejected on April 29 this year. Soon after the Commission handed down its decision, the government abolished the office of the Disability Discrimination Commissioner.
Frustrated at the delay in addressing the unfair wages, last December Maurice Blackburn announced a discrimination class action on behalf of up to 10,000 people who had been underpaid because of the use of BSWAT while working at disability enterprises.
The response of the Federal Government was swift: announcing a partial payment scheme for these workers on condition that anyone who registered for the scheme would waive their legal rights to be part of the class action and thus their right to the balance of the money they were owed.
When we challenged this move to coerce disabled employees to sign away their legal rights, the Federal Court intervened to restrict the government’s ability to communicate directly with the group.
Now the government has again returned serve in its latest attempt to get out of doing the right thing by these workers. On June 5, it introduced a bill into Parliament to establish the payment scheme by legislation! The requirement to opt out of the legal action is still there. And for the first time, details were revealed of how much workers would receive under the scheme – just half of what they would get if the class action was successful.
The government says the payment scheme is about providing certainty and reassurance to employees, their families and their carers. It says the scheme, which will not pay compensation, will deliver payments to workers as quickly as possible, and that it will help make sure disability enterprises can continue operating and afford to give people jobs.
What the government doesn’t say is that the payment scheme is a blatant attempt to coerce some of our most vulnerable workers into signing away their legal rights, for a sum of money that is just half of what they should be paid. Nor does it acknowledge that the scheme is not needed at all – if the government wanted to reassure workers, they could have simply come to the negotiating table and settled the case.
Now the intellectually disabled workers look to Bill Shorten, Christine Milne and Clive Palmer to prevent this latest attempt by the federal government to stop the employees recovering their under payments.
Australia is one of the wealthiest countries in the world with an extraordinary record of 22 years of consecutive economic growth. Its government doesn’t have to treat its vulnerable citizens in this cruel way.
Image Credit: The Leader Online
This article originally appeared on The Sydney Morning Herald Website