National peak disability and advocacy groups condemn the decision by the Australian Human Rights Commission (AHRC) to allow the Australian Government and sheltered workshops (also known as Australian Disability Enterprises or ‘ADEs’) to continue to discriminate against employees with disability.
However, we also applaud the AHRC for placing the final nail in the coffin of BSWAT and other competency-based wage assessment tools.
In December 2012, the Full Federal Court ruled that the Business Services Wage Assessment Tool (BSWAT) used to set wages for employees with intellectual disability in ADEs was unlawful under the Disability Discrimination Act (DDA). In May 2013, the High Court of Australia agreed that BSWAT disadvantaged employees with intellectual disability. In November 2013, the United Nations recommended Australia immediately stop using BSWAT.
Ms Kairsty Wilson from AED Legal Centre said, “Despite the AHRC decision foreshadowing an end to the BSWAT, the decision allows employees with disability to be paid under the BSWAT for a further year. As a result, employees with disability will continue to be paid discriminatory and appalling wages, with no guarantee of when or even if they will be paid lawful wages in the future,” argued Ms Wilson.
“This is a major abuse of the human rights of people with disability,” said Mr Paul Cain from the National Council on Intellectual Disability (NCID). “BSWAT severely discounts the wages of employees with disability, with some employees being paid as little as $0.33 per hour”.
Ms Wilson stated, “Australia’s highest courts have ruled that BSWAT unlawfully discriminates against people with intellectual disability. Yet the AHRC has decided to allow ADEs to continue to discriminate for a further year. This shows contempt of our legal system. We also question whether this decision sets a dangerous precedent whereby if a party disagrees with a decision of the courts, they can go back to the AHRC seeking a more favourable decision.”
Mr Cain pointed out that a lawful wage assessment system is available to employers now. “The Supported Wage System (SWS) has been successfully used for over twenty years to set the wages of employees with disability, including in many ADEs. This provides a strong safeguard against discrimination and exploitation.”
Mr Cain also said, “In its twenty years of operation, the DDA has largely failed to address the specific types of inequality experienced by people with intellectual disability in Australia. The AHRC decision is a missed opportunity to use the DDA to uphold the rights of people with intellectual disability.”
National peak disability and advocacy groups strongly argue that:
We stand by the rights of people with disability to be free of exploitation and poverty and to have the same industrial protections as other workers in Australia. We are considering our options and have not ruled out seeking a review by the Administrative Appeals Tribunal.