employees with intellectual disabilities paid $0.99 per hour: no compensation, no justice
The Senate has recently passed legislation which will give underpaid workers with intellectual disabilities 50% of their owed wage, on the condition that they waive their right to take court action or pursue the rest of their back payment.
The 10,000 workers have been paid as little as $0.99 per hour under the Business Services Wage Assessment Tool (BSWAT). This tool is used by Australian Disability Enterprises to base wages on the employee’s perceived competency and productivity.
As part of the BSWAT, employees may be asked broad questions that don’t apply to their occupation. If these questions are answered incorrectly, a portion of their wage could be cut. One worker under the scheme, Ms Maloney, answered all of her workplace safety assessment questions correctly, but still had her wage cut by 75c because ‘she had been observed in the factory picking up a piece of paper from the floor without bending her knees.’
‘We’re better than that and why do they treat us like that, and give us so little wage?’ Ms Maloney said.
Law firm Maurice Blackburn launched a class action to pursue full back payments for the workers. After a lengthy process, the High Court decided that the BSWAT assessment was in violation of the Disability Discrimination Act, and ordered that the workers receive compensation.
In response, the Abbott government introduced a payment scheme that allows workers to access half their payment if they forfeit their right to take class action. If workers accept this proposal, they will never receive full reimbursement for up to ten years of underpayment.
The bill passed the senate with support of crossbench senators. The Australian Labor Party and the Greens voted against the bill.
Australians with disabilities do not have a union to support them, making them one of the most vulnerable groups for exploitation. Labor senators Nova Peris, Carol Brown and Claire Moore stated that the bill extinguishes individual rights. ‘The bill stipulates that a person ceases to be a group member of any relevant representative proceeding at the time the acceptance of a payment under the scheme is lodged.’
Mary Mallett, the chief executive of the Disability Advocacy Network Australia, is outraged by the news. ‘People will have to take half the money they’re owed and waive away their legal rights to get further readdress, which is completely unacceptable.’
‘For them, some money is better than none. If they’re offered a few thousand dollars under this scheme, I think it’s likely that many of them will take that option,’ she said.
The Australian Disability Enterprises have told families of workers with disabilities that if full compensation is made, workers will be fired, as employers will not want to support them. Even though this claim is unsubstantiated, as the government is the only body liable for the payments, thousands of families have acted in support of the BSWAT for fear that their children will be sacked.
The government has also spread misinformation, according to John Bornstein, a lawyer at Maurice Blackburn. The firm was forced to publish an FAQ document after the government continually told senators that employees would only recover half of their court fees, even though it’s a pro bono case.
Minister for Social Services, Mitch Fifield has also claimed that workers would otherwise have to go through a ‘lengthy legal battle with an uncertain outcome.’
However, Ms Mallet argues that it is ‘the government that will make sure it drags out for a long time. The Minister and Department can choose to keep that fight going as long as they want it or they can choose to settle it.’
While the BSWAT was originally ruled discriminatory almost three years ago, only 35% of workers have had their wages reassessed using a different tool. In April 2014, the Commonwealth was given a twelve-month exemption from the Disability Discrimination Act to continue using BSWAT. Although this was granted to give the government time to develop a fair wage system, they reportedly made no progress. The Australian Human Rights Commission granted them a further four-month interim period this year.
Lawyers have confirmed that Maurice Blackburn is going ahead with the class action regardless of the bill.