The Department of Families, Housing Community Services and Indigenous Affairs (FaHCSIA) has lodged an Application for a Temporary Exemption with the Australian Human Rights Commission from sections 15 and 24 of the DDA and for the Commonwealth (and officers of the Commonwealth) from section 29 of the DDA.
The exemption sought is for a period of three years and if granted will permit Australian Disability Enterprises (ADEs) to continue to assess and pay wages to employees with disabilities using the BSWAT.
AED Legal Centre is firmly opposed to a Temporary Exemption and we encourage organisations and individuals to argue against this application by writing a submission to the Commission.
The Australian Human Rights Commission is seeking submissions on this application by 30 October 2013.
Background on the BSWAT Wage Case
On 10 May 2013, the High Court of Australia refused an application for special leave made by the Commonwealth to appeal against the decision of the Full Federal Court, which found in December 2012 that the use of the Business Service Wage Assessment Tool (BSWAT) unlawfully discriminated against people with a disability. The refusal to grant special leave brought to an end a case first filed over four years ago and was a source of policy dispute for a lot longer.
The outcome had an impact on approximately 20,000 Australian workers with disabilities. Two employees with an intellectual disability, Gordon Prior and Michael Nojin, successfully argued they were discriminated against. Both filed claims in the Federal Court in February 2009 alleging unlawful discrimination under the Disability Dis crimination Act 1992. Prior, from Victoria, is legally blind and has a mild-to-moderate intellectual disability. Stawell Intertwine Services Inc, an Australian Disability Enterprise (ADE), assessed him under the BSWAT and paid him $3.82 per hour to maintain gardens. Nojin, from NSW, has cerebral palsy, a moderate intellectual disability and epilepsy. He earned $1.85 an hour destroying documents for ADE Coffs Harbour Challenge Inc.
The BSWAT tool was developed specifically for the purpose of assessing the wages of people with a disability employed in ADEs, while a fairer scheme (the Supported Wage System) applies to people with disabilities working in open employment. BSWAT had the approval of the Commonwealth, and was supported by the employers generally and ADEs.
The case was spearheaded by Kairsty Wilson, Legal Manager at the AED Legal Centre in Victoria (established in 2008 by the Association of Employees with Disability Inc) and supported by a team of lawyers from AED Legal Centre, Holding Redlich and the Victorian Bar working on the litigation since 2009.
For more information, contact Phillip Camela, General Manager AED Legal Centre:
T: (03) 9639 4333
M: 0422 638 467
- AED Legal Centre
- Date published:
- Mon 16th Sep, 2013
- Closing date:
- Wed 30th Oct, 2013