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  • Justice delayed is justice denied for intellectually disabled workers

Justice delayed is justice denied for intellectually disabled workers


Intellectually disabled worker

Of all the vulnerable groups in Australia today, people with intellectual disability are surely up there with the most vulnerable and susceptible to abuse and exploitation.

For the most part they exist on the fringes of society, in the periphery of our consciousness. The reasons are structural and attitudinal, deeply rooted in a history of domination and condescension. And it is at play once again.

In response to a last minute request by the Abbott Government, the Australian Human Rights Commission (AHRC) granted permission for discriminatory practices against workers with intellectual disability to continue for another four months.

These discriminatory practices come in the form of gross underpayment of wages, which can mean some people being paid as low as $0.99 per hour (just 9 per cent of the minimum wage). With the plight of people with intellectual disability generally off the public radar, this can only embolden those in power who may well equate such invisibility with minimal political blowback in the quest for petty budget savings.

It all came about in December 2012 with the decision by the full bench of the Federal Court in Nojin v Commonwealth of Australia that the Department of Social Services (DSS) had been discriminating against employees with an intellectual disability through the use of a wage determination tool known as the Business Services Wage Assessment Tool (BSWAT).

The decision was upheld by the High Court in May 2013 when it refused an application by the Commonwealth to appeal, in a hearing that lasted just 23 minutes. The case was brought by two men with intellectual disabilities, Gordon Prior and Michael Nojin.

Essentially, the BSWAT is a tool used by Australian Disability Enterprises (ADE’s, or sheltered workshops as they used to be known) to determine the level of pay for their employees by assessing both their competency and their productivity. What the court found was that the competency component of the tool discriminated against people with an intellectual disability by requiring that they answer broad questions that may not even be relevant to their particular role. For each question a person gets wrong, a percentage of their wage is taken away, regardless of its relevancy to their actual job.

But even if you answer the questions correctly, you may still have a large proportion of your pay taken away. For example, one woman answered all the questions related to occupational health and safety at her workplace correctly but still lost 75 per cent of her pay because she was seen picking up a piece of paper off the factory floor without bending her knees.

It has been close to three years now since the BSWAT was ruled to be discriminatory, yet only 32 per cent of employees have had their wages reassessed using an alternative tool, which in a twisted irony is being used as justification for the continuation of the exemption. This is despite the original 12-month exemption being granted on the condition that a devised course of action is followed to ensure a move to a fair wage system occurs within that timeframe, a course of action the government has obviously failed to deliver on.

The other justification is cost, that ADE’s cannot afford to implement a fair wage system. But if the viability of a business depends on the exploitation of its workers, then something is terribly wrong.

Parallel to this is the government’s attempt to wrangle out of paying the full amount of backpay owed to workers who have suffered discrimination. Legislation underpinning a payment scheme that would have seen just half of what is owed paid out and the forfeiting of legal rights to join a class action pursuing the full amount was voted down by the Senate last year by one vote but reintroduced in March this year.

Displaying the utmost cynicism, the government is trying to paint the legislation as offering 'choice', that is, underpaid workers are able to choose to waive their legal rights and pocket only half of what they are owed. At the same time, they warn people that the class action will be lengthy and uncertain, but what they don’t mention is that it is their own lawyers who are deliberately dragging the case out on technical points of law.

Framing all this once again is that sense of condescension among decision makers that apparently justifies such ruthless action. Disingenuously, the government pleads that the ending of discrimination must proceed in an ‘orderly manner…to provide reassurance’, even though the government’s discriminatory practice was called out by two men with intellectual disability. By deploying every delaying tactic possible, the government is denying the very agency of people with intellectual disability at a time when, with the rollout of the NDIS, 'choice and control' is purportedly the new golden reality.

Matthew DimmockMatthew Dimmock is a freelance writer, translator and human rights activist who splits his time between Australia and northern Thailand.

Intellectually disabled worker image by Shutterstock. 


Topic tags: Matthew Dimmock, disability, employment, work, NDIS, discrimination, human rights



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Existing comments

It would be helpful for informed debate, if the comments were more balanced. The ADE's are not-for-profits. Currently all but 3 ADE's have not started the process of moving to a new tool. Go to www.ade.org.au

Mary Walsh | 15 June 2015  

Check out ABC RN's 'Background Briefing' for more detail and the complexities of this issue, well worth listening. Podcast available here http://www.abc.net.au/radionational/programs/backgroundbriefing/the-fair-wage-campaign-that-backfired/5765182

Kathleen | 15 June 2015  

I also highly recommend the ABC RN Background Briefing podcast, which explores the complexities that the ADEs face as service providers for those with intellectual disability.

Patrick | 16 June 2015  

The intellectually/psycho-socially disabled are sitting ducks for their employers and our governments. They appear to exist and work so that they may be taken advantage of by said employers and governments.
We definitely need ma Trigg to take up this tragic abuse...the governments will not.

Caroline Storm | 16 June 2015  

This is a complex matter and as the mother of a young adult working in an ADE with an intellectual disability, I am worried about several aspects. Firstly I can only speak for the ADE I know. At our ADE production levels are low and 90% the clients need a lot of extra support to complete the job. The clients love the ADE, because they have friendships, get training, emotional and physical support and are happy and proud to be going to work. There would only be a few that work at a truly productive rate. I think for those more able abled workers, an ADE may not be the best choice. My son and I are mostly happy with his low pay for the level of support and his production rate. The disabled get a pension and I don't think many realise what they will lose if they do get a higher wage. Also for some of the more able people, getting a job in mainstream is not ideal. Many still want safety and support they get from specialist workplaces. As for the government's offer, I don't agree with that at all. Better assessment tools may be necessary, but most ADE's will close and the clients will have little choice and many devastated by the closing of their workplace. I hope all things are carefully considered with this matter and it doesn't become just another big win for the lawyers.

Kate | 16 June 2015  

I listened last night to Bronwyn Bishop, Speaker of the House of Representatives, in caustic terms suggesting that if the Commissioner of the Human Rights Commission wished to criticise government policy she should resign from her statutory authority and become political active. Yet here I read (for the first time I must admit) that the AHRC has agreed for a four months period of grace for discriminatory practices against people with an intellectual disability to continue. The federal government knew something was not quite right when the Federal Court found against the DSS in December 2012. The Commonwealth, as was its legal right, appealed to the High Court, which refused to hear its appeal in May 2013. What has the government (or DSS) been doing over the past two years? Okay. So the issue is complex. But so is working out a fair wage for a fair day's work for able-bodied workers without an intellectual disability. The use of the 'work value' approach to pay determination, with its emphasis on acquired skills, has been the source of much disagreement within the trade union movement, professional associations, and employers last century. Surely some lessons have been learned.

Uncle Pat | 16 June 2015  

I have just read this article and comments. Kate's response is most in touch with reality. Many people engaged in assisted work will lose their jobs and sit a home in front of TV if workers are given equal pay. The best workers will be taken from the assisted work places and then industry won't want to deal with those workers who require a lot of assistance. These assisted work places are not for profit. .

wendy. fleming | 17 July 2015  

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