Duval-Comrie v Commonwealth of Australia [2016] FCA 1523:Underpaid Disabled Workers Claim Government Compensation
Tuesday 20 December 2016 @ 1.07 p.m. | Industrial Law | Legal Research
On 16 December 2016, the Federal Court handed down judgment in the case of Duval-Comrie v Commonwealth of Australia [2016] FCA 1523, a class action which asserted that the use of the Federal Government's Business Services Wage Assessment Tool (BSWAT) discriminated against people with intellectual disabilities.
Background to the Case
Maurice Blackburn’s client Tyson Duval-Comrie commenced an action which alleged the use of the BSWAT discriminated against people with intellectual disabilities who work at Australia Disability Enterprises, in contravention of the Disability Discrimination Act 1992 (Cth). BSWAT is a tool used to determined pro-rata wages for people with a disability.
In 2012, in a case brought against the Commonwealth by two individual workers with intellectual disabilities, the Full Federal Court decided that using BSWAT to set the wages of intellectually disabled workers was discriminatory and contravened the Disability Discrimination Act 1992. The High Court refused the Commonwealth’s application for special leave to appeal in May 2013. Nonetheless, workers with intellectual disabilities in ADEs have continued to be paid under BSWAT.
Court Approved Settlement
In the judgment of Duval-Comrie v Commonwealth of Australia [2016] FCA 1523 on 16 December 2016, settlement of the action which had been agreed between Maurice Blackburn and the Commonwealth in February 2016, was approved.
Part of agreement was to seek to change the Business Service Wage Assessment Tool (BSWAT) Payment Scheme Act 2015:
- To pay 70% of the compensation owed to employees
- Manage the payments of compensation through the BSWAT payment scheme
- Extend the deadlines under the BSWAT payment scheme to ensure more people are compensated.
Parliament amended the legislation in February 2016 to take account of these changes and the court approved settlement was the final step.
Reaction from the Lawyers and Participants
Partner at Maurice Blackburn Josh Bornstein said it was a historic day:
"It brings to end a David and Goliath battle. A settlement in excess of $100 million. It's been a long running battle in the courts — it started in tribunals 10 years ago."
Mr Duval-Comrie's father Bruce Comrie said he was pleased his son would now be paid what he deserved:
"For this decision just to happen before Christmas, I think it puts everyone to rest...Tyson is going to received what he's entitled to. Tyson can look forward to his future and getting his appropriate pay...We will just be able to rest easy now."
Disability workers, the National Disability Service and lawyers have been working to come up with a new tool through a Fair Work Commission process but so far there has been little progress.
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Sources:
Duval-Comrie v Commonwealth of Australia [2016] FCA 1523 (16 December 2016)
