Employment for Severely Disabled at Risk Following Human Rights Commission Decision

Monday 26 May 2014 @ 11.54 a.m. | Industrial Law

In a recent decision (29 April 2014) the Human Rights Commission (HRC) by way of an instrument issued under the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act), section 55(1), granted to the Commonwealth and all Australian Disability Enterprises (ADEs), using or proposing to use the Business Services Wage Assessment Tool (BSWAT), an exemption from the operation of the Disability Discrimination Act sections 15, 24 and 29. By giving ADEs, (formerly, sheltered workshops), one year to lift the wages of their workers who are now paid just a few dollars an hour for their work, the HRC has provoked, it is reported by the ABC :

". . . fears that thousands of people with a severe disability could be thrown out of work".

The Nature of the Problem

The HRC's decision to grant an exemption to ADE's using BSWAT has been highly criticised by disability advocates it is reported; their position being that, wage reform in the ADE area should take effect immediately.

However, ADEs which are "not-for-profit" groups say they cannot afford to move as quickly as is suggested by disability advocates and further, that many of them could actually fold with the result of leaving many severely disabled people without work altogether.

Background to the BSWAT

Developed in 2003, the BSWAT is administered by the Commonwealth and is a tool who's purpose is to determine the level of wages paid to people with disability employed in Commonwealth funded ADEs. Currently there are 194 ADEs nation wide in Australia employing an estimated 20,000 people with a disability. Industries covered by ADE's include; packaging, manufacturing, catering, and horticulture and of the estimated 20,000 employees, approximately half are assessed as to their work potential/capacity using the BSWAT.

Court Challenge to BSWAT

In Nojin v Commonwealth of Australia [2012] FCAFC 192 (21 December 2012), the Full Federal Court found that the test of competency in the BSWAT discriminated against people with an intellectual disability. The Commonwealth sought and was refused special leave by the High Court to appeal the decision on 10 May 2013. The cases was initiated on behalf of two intellectually disabled men, Mr Michael Nojin and Mr Gordon Prior, each of whom worked in an ADE. The proceedings revolved around complaints that, by using the BSWAT to measure their work contribution, and ultimately to assess their wages, the ADEs in which Mr Nojin and Mr Prior worked discriminated against them in their employment, complaints the Federal Court upheld.

Reaction to the HRC's Grant of an Extension of Time

The initial decision and what has come from it are, by reports of the reaction to it,  being viewed as a mixed blessing, for example; the ABC reports the National Council on Intellectual Disability's Paul Cain as saying:

"In a positive [sense], it really spells the end of a dark chapter in the wage settings of people with intellectual disability, .  .  . But by granting one year, it means that employees with intellectual disability in ADEs will continue for up to one more year to suffer unlawful disability discrimination."

On the question of who should address gaps in costs while ADE businesses adjust to the new wage model, Mr Cain is reported to argue that, it is for the Commonwealth to address, saying also:

"A business that isn't viable cannot meet its costs by unlawfully discounting an employee's wages, . . . So the big question for Australia and for the Government is to make sure if you're going to put people with an intellectual disability into employment, they've got to [make sure that it] is viable and not trade off their human rights for a basic wage."

In response the Assistant Minister for Social Services, Mitch Fifield, is reported as saying:

".  .  .  that the Government remains committed to ensuring the ongoing employment of up to 20,000 workers and the viability of ADEs  .  .  . I'm deeply concerned and disappointed about the decision of the HRC, . . .I appreciate that they have the best of intentions, but if ADEs were required to immediately move to a new wage assessment tool which would double the cost of providing employment, then ADEs - which most of them really struggle to break even as it is [sic]- a lot of ADEs would become unviable and cease to exist."

What Next

The question of what comes next appears still to be an open question and will it seems be ultimately the result of a year to adjust and of how many ADEs are able to provide the same level of employment at a greatly increased but fairer (more comparable to normal) wage levels.

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