The Senate is scheduled this week to debate legislation establishing a payment scheme for around 10,000 workers with intellectual disability whose wages were determined using a tool found by the Full Court of the Federal Court to be discriminatory. The use of tool, the Business Services Wage Assessment Tool (BSWAT), has long been contentious and the Government’s proposed BSWAT payment scheme is equally so.
In 2012 the Full Court of the Federal Court decided (Nojin v Commonwealth) that the employers of two men with intellectual disabilities, Mr Nojin and Mr Prior, had unlawfully discriminated against them by imposing a requirement or condition that, in order to secure a higher wage, they must undergo a wage assessment through the BSWAT. The employers in both cases were Australian Disability Enterprises (ADEs), which were funded by the Commonwealth to provide supported employment. ADEs provide work in such areas as packaging, assembly, production, cleaning services, laundry services and food services
Around half of supported workers have their wages assessed using the BSWAT, making it the most commonly used assessment tool. The BSWAT is comprised of two components. The first is a productivity component intended to assess a worker’s output compared with a person who does not have a disability (based on an industry benchmark or a comparator).
The second is a competency component, which is intended to measure an employee’s value to an organisation against a broader set of standards (or competencies) than can be obtained by simply measuring their capacity to perform the tasks associated with a job. Supported employees are paid a reduced (pro rata) wage intended to reflect their productivity and competence in performing a job.
It is the competency component of the BSWAT that was the basis of contention in Nojin v Commonwealth.
The Court decided that the unlawful discrimination arose because competency assessment of the kind measured through the BSWAT placed intellectually disabled persons at a disadvantage compared with other workers. The disadvantage was that the BSWAT required the person being tested to have the capacity to articulate abstract concepts.
Although it was the employers who were liable for the discrimination, the Commonwealth agreed to bear the liability because it had devised the BSWAT and promoted its use.
In December 2013, a class action (‘representative proceedings’) was lodged against the Commonwealth in the Federal Court, alleging unlawful discrimination against workers with intellectual disabilities working in ADEs.
The proposed scheme
According to the Government, the BSWAT payments scheme ‘will not pay compensation, but will provide a payment to eligible people’. Registration for the scheme is open between 1 July 2014 and 1 May 2015.
If eligibility is established, a payment amount will be calculated, based on 50 per cent of the amount the worker would have been paid had the productivity element only of the BSWAT been applied. Under the scheme’s ‘release and indemnity’ provisions, acceptance of a payment means that an individual is unable to participate in the representative proceeding currently underway or any other legal proceeding in connection with the BSWAT.
In deciding whether to accept a payment under the scheme, the applicant must seek independent financial counselling and legal advice, funded through the scheme. Once an offer has been formally accepted by the applicant, payment will be made.
As suggested in the relevant Parliamentary Library Bills Digest, controversy surrounding the payment scheme has most likely been heightened by the absence of adequate explanation by the Government of issues such as why payments have been set at the level they have; and whether it is fair and reasonable to make payment under the proposed scheme conditional on ceasing participation in representative action.
The Government argues that the payment scheme is necessary to ensure that ADEs are able to continue to provide employment to people with disability. Disability services peak body, National Disability Services has described the payment scheme as providing certainty to eligible employees by providing them with a payment without the necessity of engaging in litigation.
However, disability advocacy organisation, People with Disability Australia, has argued that the scheme represents an attempt to ‘sabotage’ the efforts of vulnerable people to obtain compensation for discrimination suffered as a result of a wages assessment using the BSWAT and that it should be opposed.
The Parliamentary Joint Standing Committee on Human Rights has also raised a number of substantial concerns with these Bills, including in relation to the method for determining payments; the ‘release and indemnity’ provisions; aspects of the review arrangements; the role of nominees in the scheme; and strict timeframes applying to applicants, which it suggests may have a disproportionately negative effect on people with an intellectual impairment.
The legislation has been referred to the Senate Community Affairs Legislation Committee for inquiry and report by 26 August 2014.