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 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.