Monday 4th August, 2014: 1:30am - 2:30am
Kairsty Wilson, Principal Solicitor, Association for Employees with a Disability (AED) Legal Service
A major highlight during Kairsty’s leadership at AED has been her advocacy to improve the wages and working conditions for people with disability working in business services, now known as Australian Disability Enterprises. This work for people with disabilities was formally recognised by the legal profession in 2011, when the Law Institute of Victoria awarded Kairsty with the Community Lawyer of the Year Award.Photo of Kairsty Wilson, Principal Solicitor, Association for Employees with a Disability (AED) Legal Service
Viv Avery, Lawyer, Villamanta Disability Rights Legal Service Inc.
Viv’s legal expertise is in the areas of child protection, administrative law and disability rights. His work at Villamanta Disability Rights Legal Service (a community legal centre) focuses on disability related legal and justice issues for people who have a disability, usually an intellectual disability. Viv also works in private legal practice.Photo of Viv Avery, Lawyer, Villamanta Disability Rights Legal Service Inc.
Kairsty Wilson from AED Legal Service and Viv Avery from Villamanta Disability Rights Legal Service are grass roots advocacy campaign leaders. This session discusses how they achieved systemic change. What were the strategies they used? How did they know when they achieved real change or if they were short changed?
AED’s legal work in relation to discrimination against people who have an intellectual disability and the use of the Business Services Wage Assessment Tool (BSWAT) and Villamanta’s legal work in relation to the fee hike affecting people who live in community residential units, are outlined. This is followed by a discussion analysing how effective the strategies were, what results were achieved and what might be done differently in future campaigns.
Hhello everybody, I’m Deidre Griffiths from Villamanta Disability Rights Legal Service. Thank you for coming to this session. we’re just waiting for one of our presenters who will be here momentarily.
I think you know from the program we’re looking at how advocates, particularly legal advocates and other advocates who work with the legal advocates have been trying to use the law in a couple of different examples. one is the work that Villamanta Disability Rights Legal Service did in conjunction with VALID in relation to the fee hike campaign. i guess a lot of you would be aware of that. Viv Avery from Villamanta Disability Rights Legal Service is going to talk about that.
The other is the BSWAT campaign and legal matter that AED Legal service has been involved in and Kairsty Wilson from AED Legal Service will be talking about that.
I’m not sure whether our speakers would like you to ask questions as you go along, yes I know Viv Avery is happy to have people interrupt and ask questions. Kairsty, is that okay with you too – yes or if you would like to save questions to the end that would be fine too.
I guess we’re interested in hearing from the speakers about how they use the law, how they ran these campaigns and what success or otherwise they had in the various tribunals, courts, legal forum/settings they worked in.
I might introduce the first presenter Viv Avery from Villamanta Disability Rights Llegal Service. Viv is one of our lawyers who works on disability related legal issues for our clients who have a disability and a disability related legal issue. some of the areas Villamanta works in are a lot to do with disability services and access to services but also other general rights matters for people who have a disability and justice matters. we do some work on child protection matters in particular for parents who have a disability and who become embroiled in the child protection system. we do work on guardianship and administration and a little bit on criminal law and related issues. just quite a variety of different areas that affect our clients.
I’ll introduce Viv Avery and hand over to viv. please feel free to ask questions as we go along, put your hands up and we will get the roving mic to you. thank you.
G’day my name is Viv Avery. Can you hear me up the back? Great. There is a PowerPoint presentation that’s supposed to be running but I don’t know how to access it I’m sorry. We have to find the information technology person to start the PowerPoint.
Villamanta 6 or 7 months ago we were contacted by quite a number of parents who were concerned that they were getting letters from the Department of Human Services to raise the rent of people living in what we call CRU’s or disability service accommodation units.
What the State Government wanted to do was raise the rent to 75% of the pension plus the Commonwealth rent assistance. For many people of course that was a huge increase in their rent and it meant for a lot of people that they weren’t going to be able to access a lot of the services. The significant issue for the people we were dealing with was they were significantly disadvantaged, probably the most disadvantaged people of our community. That’s saying something to a group of people who advocate for people with disabilities.
The biggest problem for this client group was they were living in disability service accommodation units, they were often profoundly disabled, they have the same rights as everyone else but they’re often unable to advocate for their own rights. The question therefore was was it fair to raise the rent to 75% of the pension plus the Commonwealth rent assistance? That was the question we were asked.
As lawyers of course the question wasn’t was it fair, in fact we weren’t caring whether it was fair, we were more interested whether it was correct in the legal sense. We’ve been asked to talk here about systemic change.
There are essentially three areas that can engage systemic change. You need to have a change in the political attitude, let’s not go down the line of bagging the Liberal party at this time. You have to have a change in the social awareness that’s exceedingly important. And you have to have an understanding there needs to be a change often in the legal process. We will come back to those three areas as we go but importantly what we were asked to do as I said, we were asked to look at the decision to raise the rent.
The vulnerability of this client group is in many ways very, very important. Not necessarily from a legal sense but from the social sense. The reason that as I said the issue of vulnerability was important was because these people just simply can’t advocate for themselves. They often have families who are not able to care for the client at home.
We call them a client or a resident, won’t call them a person with a disability because I hate that term. It’s to me a term which creates a disadvantage. Whereas at Villamanta Legal Service we try to ensure all people are treated with equal dignity.
They are the most vulnerable people, often put into homes because their parents can no longer look after them. A large proportion of people that rang Villamanta and there were hundreds of phone calls, of people saying I’m aged, I’m 70, I can’t advocate, I haven’t got the strength to advocate for my children anymore. We got phone calls from organisations saying this person has no one to advocate for them. A large proportion of these people are on administration orders with state trustees or with Judge Papaleo. With respect to state trustees or Judge Papaleo they don’t advocate on an individual basis. Because these people couldn’t stand up for themselves, because they couldn’t say anything, the fairness issue that was raised by the social side of this argument was that these people can’t argue against it.
The issue about the vulnerability of course is, the most important one, is people have a right to be part of the community. The increasing of the rent meant a lot of people would therefore be unable to access the community. They couldn’t do things like pay for their day placements. The couldn’t go and buy cups of coffee for their family. That was actually one example of a person who rang us up and said I can’t afford to be able to pay for a cup of coffee and for my mum and dad to come over. They couldn’t afford to buy presents for Christmas, couldn’t afford to catch a bus or buy their own clothes.
The system before what the State Government had was a very good system. It showed where their money was going. It was open, it was accessible and it was people living in community residential services it showed them where their money went.
One of the arguments we got back was well they don’t understand so why does it matter which from my perspective was one which raised my hackles very quickly. It was an attitude of Government, an attitude of the Department of Human Services that just because people with intellectual disabilities, that’s the main area, just because they may not be able to understand doesn’t mean they shouldn’t have that information available to them just in case. Or perhaps just in case that 90% of them would have some understanding or just in case 90 – 95% of them would like to have the dignity of having that information available to them.
I said earlier on that fairness wasn’t an issue because I’m a lawyer but fairness is a significant issue because you feel constrained or angered by the Departments and by the State Government’s attitude about people with disabilities.
What their program was was simply to take 75% of the pension and ensure that money was put towards accommodation. It did not take into account the difference in services. There were some houses in the disability sector where the gutters are falling off, the rooms have not been painted, there is urine smell across the house. There is appalling food that’s being provided. Compare that to a service, which was brand new, a lovely home with individual rooms, properly carpeted and good food for the individuals.
What the Government was seeking to do was to charge somebody the same figure for different services. A crap service, a quality service and the Government wanted to charge the same figure. For us that’s where the law stepped in.
As I said families were horrified. Organisations such as Valid were wanting to jump in. But we were told we had no legal argument by the Office of the Public Advocate. We were told we had no legal argument by the Department of Human Services. We were told we had no legal argument by the other legal services that assisted us. We were told we had no legal argument by a lecturer from University. However I disagreed.
The important thing here from a legal perspective is we had to take away the emotive issue and look at the law. When we talk about the different types of campaigns we need to understand there are three different campaigns. There is the social campaign, legal campaign and political campaign. That’s where we get back to these issues.
Social campaign was run by Valid. Valid did an absolutely excellent job. They chased around for signatures, organised rallies at Parliament, contacted radio, papers and television and they attended parliament. They got representatives to go and attend Parliament.
All of this was designed to put pressure on the Liberal Government at the time. They even spoke to the Member from Frankston hoping to get him on board which wasn’t very successful, but then we all know what the Liberal Member from Frankston was like.
The legal campaign we lodged an application, a VCAT. Just be clear on this, this was the first ever legal campaign, first ever application about rent in disability services accommodation units. We started off with a hundred or so clients with hundred or so families. We ended up with 1,800 clients we had to advocate for, find legal argument for.
What was interesting was that when we got into VCAT, into court we were up against the Department hired a QC. The gentleman was more than a QC he was a Don from Oxford University, he was a QC from the UK, Senior counsel in Australia and he appeared for the Royal Commission on fires. They had me, sorry about that to act.
We argued, now when we look at systemic change we need to be aware there are those three elements. From a legal point of view, we argued the increase itself was inconsistent with the disability act, it was arbitrary and that was Wensory’s (?) Rule and I’ll tell you what that is in a minute because you will love that, I do because I’m a lawyer. The Department said it wasn’t excessive because excessive was defined in the act, we said we don’t care.
What Wensory’s (?) Rule is, it’s a rule made in the 1800’s. It was a case, which a member of Parliament made a decision and the court said it’s a decision that no reasonable person in their right mind would make. This is the argument that we presented in part in court or in the tribunal. Essentially we said that the increase because it was across the board, because it didn’t take into account all the individual factors of all people then that was an unreasonable decision.
It was unreasonable because why would you be paying 75% if all you’re getting is bread and butter in the morning. Why would you be paying 75% if your room hasn’t been painted in the last 10 years and smells of urine? Why would you be paying 75% if your money was taken away and you couldn’t then attend your day placements?
Those might seem like factual arguments but they’re part of the legal argument. The interesting thing is this is what the Government did. The Government said well yeah you’ve got a right to bring an application to VCAT but VCAT doesn’t have the jurisdiction to hear the matter.
Okay, I noticed some raised eyebrows when I said that. That is precisely the argument from Government. You can bring the matter to VCAT but VCAT can’t hear it. That meant we had to argue a jurisdictional argument. This was a day and a half of legal argument in front of the County Court Judge assigned to the case.
VCAT ruled in our favour. VCAT said well yes the argument that Villamanta is seeking is actually a valid argument because the act does allow for the matter to be heard at VCAT. Just note that, we haven’t got to the substantive argument yet. The Department as I said have hired a QC, they had spent thousands upon thousands of dollars to argue a point which was simply about whether or not VCAT had jurisdiction to hear, whether VCAT could hear the matter.
We won the argument and what the Department then did was they lost. They said VCAT does have a right to hear it so we’re actually not going to pursue the case. So the Department withdrew simply on the basis that VCAT could hear the case. As I say this is the legal side not the social side, not the political side. They withdrew because they knew we would win.
We had thousands upon thousands of signatures. Thousands upon thousands of people ringing in saying the action was wrong. We had people, family members, mums and dads turn up at the hearing and voice their concerns about the decision the Department had made. That was even before we got to the actual case.
We started preparing for the actual case before the Department withdrew and we had huge amounts of information to show why the decision was irrational and Wensory’s Rule won, which no reasonable person in their right mind would make. What the Minister then said, let’s be very clear about what the Minister said, we had 1,800 clients. The Minister said we don’t want to put them through a case, we don’t want to put them through a hearing because that would be upsetting for them. What an excuse the language…am I allowed to swear?
Absolutely….condescending point of view. These people turned up at VCAT. They wanted to fight and the Government simply tried to save face and said we don’t want to put them through hardship, don’t want to put them through a case. The Department then decided to change the law.
This is where we get to the question was it real change or not? In changing the law what the Department didn’t do or the Government didn’t do was they didn’t demand 75% of the persons pension. They still wanted the Commonwealth Rent Assistance but then most people weren’t getting that anyway.
What they then said was we will have a review of the accommodation service costs and a review of the fees and that’s happening now. What’s happening at this point in time is Valid is organising further on with the advocacy, they are involved in the review process for the fees, they are still seeking public support for the program.
So when we get back to the three issues the question is have we made a social awareness? I think the answer is clearly we have. We got onto the radio, I was interviewed on the radio and that went across quite well apparently. Many other people were interviewed. We got into the newspapers and got the Government to cave in because there was this social pressure upon them.
The legal challenge. Did we make a difference in the legal change and I think we did. We stopped the 75% whether it stopped it forever is a question that needs to be looked at in the future. We certainly stopped the 75% being taken away from people’s pension because there was a social campaign.
Have we changed the political structure of the Government? The short answer there is no we haven’t. The Government in their attitude in walking away from the case, I must admit I was incredibly disappointed in not being able to run the case in VCAT.
It’s a public campaign, it’s a public case. It could’ve been across all the newspapers. The Government ran away from that. They changed the law albeit partially but their attitudes haven’t changed.
Their attitude that a person needs to pay for whatever services they get is profoundly ludicrous because people with intellectual disabilities living in accommodation services simply don’t have the money to pay for everything they get. It needs to be subsidised.
Their attitude that well they don’t really need to know where their money is going is again profoundly insulting because what it means is they’re denying that person their rights to be treated as everyone else in society with respect, with dignity, with the opportunity to be able to make their own decisions or see where their money goes. Irrespective if the person is so profoundly disabled they don’t understand, that’s irrelevant but the Government hasn’t changed their attitude.
The question at the very beginning was did we make a social or systemic change? I think we did make social change. We made it more aware, we certainly challenged the legal issue. Sadly I don’t believe we changed the Governments attitude. That’s the answer to the question.
Now just so there are some resources for you, there are a couple of resources for people considering social change, a program for social change. One is Deidre, I’ve got to do this bit because this is a publication by Villamanta and my boss is sitting out the front. There is a book called People.com in Unity. It’s actually a really interesting book, which talks about social campaigns and gives lots of examples about social campaigns. It’s an excellent book to read and I have some free handouts later on.
There is on the internet an absolutely brilliant resource kit called The Butterfly Toolkit. As you know when a butterfly waves its wings in the Amazon there will be a hurricane in Papua New Guinea, that’s where this idea comes from. This campaign program is one, which was run for a number of programs in Africa, and it talks about all the different social campaign strategies you can use. Talks to the decision makers, make sure there is a political change, make sure there is social change, make sure there is legal change. Those campaign things are downloadable from the internet and I will make sure you can get those links later on.
I know I’m limited for time and my problem is I like to talk for a long time. However, it’s open up for questions. Anybody got any questions?
Along what was said before, you did really well what you say on your speech. In the community around here, I reckon we deserve a medal for you for standing up for everyone. I have been to a few meetings, I have spoken on the stage once and I went really well. Thank you very much mate that speech, you done really well.
Well thanks for the feedback that’s brilliant. Villamanta by the way is staffed by three lawyers, we’re part-timers. The organisation as we know, disability services as we know are underfunded. We try and do the best we can and thanks for the feedback. I’ll pass it back to all the other lawyers.
I’ve sort of worked as a systemic advocate for a number of years. I find there is a lot of barriers obviously. One of those I guess when you’re looking at support accommodation is whether it’s this issue or something similar, the privacy issue where people are experiencing something whether it’s a poor quality of service, and they complain to the Commissioner. Is it possible for us to develop some sort of systemic register of complaints that is held say at Villamanta that we can then forward on so we can say we have a lot of dissatisfaction in this area and when things arise it becomes a meeting place in terms of….
Okay your question talked about privacy and a register. For those who heard the radio broadcast, I was asked a question on the radio.
My answer was you’re asking a lawyer a question and the answer is yes, no, maybe. Lawyers should always answer questions yes, no, maybe. Let’s take one of those at a time.
I’m not sure what the issue of privacy has to do with it simply because if a register is formed and placed somewhere then the information that’s being provided to the register is relevant to the information that’s being collected or the use of it is relevant and that’s under the privacy act or the privacy regs.
When you said privacy, my first thought was DHS often say there is a privacy issue here. With the greatest respect that’s more often than not crap. DHS will use the word privacy to not provide information, which you actually have a right to, or the client has a right to access without having to go to freedom of information.
Is the client living there – I’m their lawyer we can’t tell you because there is privacy issue. Is the client living there, I’m their father – well we can’t tell you what they’re doing because there is privacy issues.
Sometimes they get that petty with privacy issues. This is the way I took the first part of the question I’m sorry. Don’t be dissuaded by the word privacy, it’s not always relevant or accurate.
In terms of a register I think a register is actually a brilliant idea. A lot of people get injured, hurt or there is incidents in disability service accommodation units or CRU’s as they were called. The process for reporting those is probably inadequate and I don’t think there is an audit trail for those to go. Although there is a policy and procedure which does require the Department to follow certain steps that policy or procedure is or should be available or on the internet but sadly it’s not always followed.
I just remembered that after our discussion earlier. That’s something you could research. Could Villamanta hold it – no. Simply not, simply because it would be an issue which a Government body or similar should bandage that sort of register so that it could be followed through.
The Disability Services Commissioner might be the most appropriate one, who knows. But then you would have to change the law to ensure they can do that.
We might take one more question now quickly and then hand over to Kairsty Wilson from AED Legal Service otherwise we will run out of time and then have more questions at the end. One last question for Viv.
I come from Sydney and I’ve worked within group homes within Sydney. I don’t know much around here at all but when you’re talking about change and the money side of things and how the guys can’t…being able to access. Is there any way that your organisation could change that in any way, shape or form? Especially with the NDIS coming in, how is it going to affect, you’re saying about the change and stuff like that?
Is your question in NSW there isn’t a transparent process for how the money is managed?
There is in NSW but you’re saying up here there isn’t because of the change. You’re saying 75% of their money is taken away and you had that big fight. Is there any way with the NDIS is that going to change at all in any way, shape or form, the question you were just asking?
The way the management of money was advocated for in Victoria was actually a very long process and involved a lot of families who argued that the person with the intellectual disability needs to be able to see where their money goes.
It goes down to how much food is purchased, where furniture is purchased, what money is spent for clothing. There is a ledger, which shows all that information. That took years for that procedure to be put in place simply from advocacy by organisations such as Valid and parents.
It’s an absolutely brilliant system and it’s the one the Government and Department want to take away. A lot of the money where it’s kept is actually held on trust for the client. It goes into a trust fund, which is then used to benefit the client.
Again, that was something, which the Government was seeking in some part to take away. That is still something that I understand the Government is still seeking to do and something which families and Valid is seeking to advocate against that sort of change. That’s the way it was done.
I might have to cut you off there Viv. Sorry if we haven’t fully answered the questions. If there are more questions maybe you could ask them after or speak to the speakers at lunchtime. Thank you Viv for your presentation and I will invite Kairsty Wilson from AED Legal Service up.
Hi, I also don’t know how to work this thing so we might need the IT technology man back again.
Just to introduce myself I’m Kairsty Wilson from AED Legal Centre. I’m the principal lawyer there. We’re a community legal centre specifically for people with disability in the areas of employment and education.
We’re funded by the Department of Social Services and there are at this stage…sorry I’m not good with this thing. So real change or short changed, a fight against the system. The picture up there is of Tyson Duval-Comrie who is the applicant in the representative action that is going on at the moment, I will get to that.
The rule of law – our Department has primary responsibility for supporting the Australian Government in protecting and promoting the rule of law. The rule of law underpins the way Australian society is governed. Everyone including citizens and the Government is bound by and entitled to the benefit of laws. We support the Australian Government in being accountable for actions, making rational decisions and protecting human rights.
I think our story goes to show that that’s not what they do. Our story – working for peanuts. Australia’s shame. A journey through the legal system, 10 years later actually 12 years later and justice for all. I don’t think so. I guess I’ve got cynical over the last 12 years in believing in that we start off, we’re recognising there is a group of people who don’t receive the same equality that those working in open employment receive.
I had hoped that in taking this action that we would actually get a result in the end that would achieve that.
Australian Disability Enterprises. A lot of you would know them as sheltered workshops or business services. ADE is supported employment. It’s for people who may need some support to be able to go to work. They’re funded by the Department of Social Services to give that support.
The employees attend and they do production or they might do gardening, there is a whole range of tasks that they do. 12 years ago I realised that these people were being paid maybe 5 cents an hour, $1 a day, a couple of dollars a week and it wasn’t based on awards which is how most, well how your wages are calculated, working in open employment.
So we commenced a campaign. Now or what happened was that the Government designed a tool that measured how much these workers should be paid. In 2004 they introduced the business services wage assessment tool. This was despite being told quite clearly the tool is discriminatory, it’s not fair.
What happened with this tool is that it’s divided into two. Instead of just measuring how productive the employee was only half was given to that side of the wage, the other part was in regards to competencies. What would happen is the employee would be asked questions such as what meetings does your boss go to, what do you do if there is water on the floor, what do you do if you don’t get on with your neighbour? How relevant are these things to the work that you’re actually doing?
I was at one ADE doing the assessments and I noticed that my client had being marked as not yet competent. Yet she had answered all the questions correctly. They said to me she obviously didn’t understand the questions because we saw her pick up a piece of paper from the floor without bending her knees. She lost a percentage of her wage and in fact many of these employees lost half of their wages.
What happened is if you got one thing wrong, one question wrong for example occupation health and safety 16 questions, you get one wrong you got zero, you get fifteen wrong you got zero. So you would lose that percentage of the competency section.
In regards to what industry some people only did for example gardening, the other three competencies in that section they got zero for.
What was happening here was these employees for example say there were 50% productive but get zero for competency they end up with 25% for the wage.
We have one of our clients who is on 33 cents an hour. $150 per annum. That’s not per week, it’s each year she receives $150. We obviously had problems with this tool. We found this tool was discriminatory.
When you say (inaudible – too far from mic).
The question was the $150 per annum was that on top of the DSP? Yes, it is on top of the DSP. It’s no different to if you are on Newstart or a sole parent, you’re on whatever pension there might be and you go and work then the money you get is on top of the DSP or the pension, whatever pension you’re on. You’re allowed to earn about $80 a week before you….
(inaudible – too far from mic) earn up to $300 a week?
$300 a week, no. It’s an approximate figure but it’s around $80 a week you’re allowed to earn before your pension is affected then you lose 50 cents to the dollar.
Obviously you’re better off if you can work and earn a decent wage. Everyone will still receive the pension.
Is that across the whole board or just here in Victoria?
No it’s right across Australia. There is over 20,000 workers in these AED’s that are impacted by these assessments. There are 10,500 who are assessed under BSWAT around Australia. I think.
I have one question, I’m Tom Maxwell and I’m with Job Support. One of my friends are in Job Support. I was wondering does Job Support and other job agencies come under would you find a job?
Job Support they assist people to find work in open employment usually. Occasionally they find work for their clients in ADE’s but it’s not the usual practice.
It actually is because a lot of the people from Job Support do work under this heading where they get supported wages and their wages are actually capped at a certain level and they get the pension on top. My husband is under this wage at the moment.
Supported wage is different to BSWAT. Supported wage is a straight productivity wage assessment and that is used in open employment.
The Disability Employment Services they assist people with disability to find work usually as I said in open employment. That’s what their contract says however they do assist some employees to go to ADE’s. It isn’t the usual practice.
There is a difference between in an ADE you’re allowed to pay employees under BSWAT or another 28 different assessment tools, one of those is a supported wage.
What we say is the only tool that should be used if you’re going to assess peoples wages is the supported wage system because it’s straight productivity. So why we say BSWAT is discriminatory because it’s not based on the comparison of actual work at the award level. It includes an assessment of competencies, which are irrelevant to the job.
Workers with and without disability in open employment and in receipt of full award wages don’t have their wages discounted by reference to competencies. If you’re working in open employment you go to work and you’re paid your wage. You don’t lose a percentage of your wage if you don’t know what to do if there is a fire drill, which is what happens for these workers in ADE’s.
Workers without disability doing the same award level of work would not achieve on average 100% wage assessment if assessed under BSWAT. That’s what the court found and it under states the value of the actual work contribution of all employees particularly with an intellectual disability. And the competencies element of it they set the bar too high for supported employees.
They were assessed on things they didn’t actually do, for example setting up the production line. Those were jobs the supervisors did so why should they lose a percentage of their wage because they didn’t actually do a job.
For example Gordon Prior who was one of the applicants in the original action, he is visionally impaired. He can’t fill the lawnmower with petrol because he can’t see to do so. But he lost a percentage of his wage. He was never employed to do that element of the job.
The difficulty with this tool is that people were losing a percentage of their wage for things they didn’t do. We put in a complaint to the Australian Human Rights Commission.
I have a question. I work in Sydney, I work with fax. I was wondering what if people with disability are just work placement in a Government job, how do you do that?
I’m not quite sure what you mean. Do you mean working in open employment for the Government?
It’s really up to your employer as to whether you go through the supported wage system. Most employees in open employment are employed on award wages.
It’s only sometimes when you’re going through a disability agency it may be that it’s decided to assess you under the support wage and then what happens is the assessor comes in and they do an assessment. There is a comparison between somebody else working with you and then they work out what the percentage of the wage that employee is going to receive. That’s got to be done every year and has to also go through the Fair Work Commission to make sure it is fair. There is quite a process before you can reduce wages in open employment.
We had two applicants Michael Nojin or his mother took the action on his behalf and Gordon Prior. Michael was from Coffs Harbour and Gordon was from Stawell, Stawell Interchange he worked for. We went to the Federal Court first and we lost. I found that unbelievable.
Anyone hearing about it could say it’s okay. The Judge said its hard working with people with disability and it’s a charity so it’s okay. Obviously, we didn’t agree with that decision so we appealed to the Federal Court.
By majority, we were successful and Justice Buchanan said the criticism was compelling. He couldn’t see why the competencies were part of an assessment tool and he actually went on to say further that any tool that had competencies as an element of it should not be used to assess people with intellectual disability for their wages. In his view, BSWAT was unreasonable.
The Government didn’t like that so they went to the High Court or they sought leave to appeal at the High Court. The High Court was unanimous in their decision, they confirmed the majority’s decision and they rejected the application. Again the judges there couldn’t see why this tool should be allowed.
The Government didn’t accept that decision which is really unfortunate obviously. Their response was they had a vision for supported employment – future wage setting arrangements discussion paper. Alright we’ve got that discussion paper, unfortunately there wasn’t much discussion with a lot of people about it.
There was a consultation with the Disability Sector. We had discussions with the employer groups, families, advocacy organisations, other interested parties and last of all the employees themselves. The employees themselves advocates weren’t allowed to be present. It was very much a presentation done by the Department and questions obviously of what we should do.
That was it that was in July last year. We had the High Court decision on the 10th May last year, 2013. A couple of months later we had a consultation and that’s it.
During the caretaker period, the Department put in an application to the Australian Human Rights Commission for an exemption so they could continue using BSWAT for another 3 years.
We’ve been using it 10 years now and they wanted another 3 years. They haven’t done anything yet. People are still being paid under BSWAT. There are people who haven’t been assessed at all. We have had very little consultation, certainly not with the advocacy sector and with the employees themselves that we can work out in regards to the employees but there has been consultation with the ADE’s.
The Commonwealth does not consider BSWAT discriminatory. They see the decision only applies to the particular circumstances of Michael Nojin and Gordon Prior, which is really surprising when you consider Justice Buchanan, said for all employees with intellectual disability.
Since then a complaint was put into Australian Human Rights Commission, which has now ended up in the Federal Court. It’s a representative action.
As I said Tyson, who you saw the photo of, he has taken that action on his own behalf and on behalf of all those employees with intellectual disability, working in ADE’s who have been assessed under BSWAT. This action seeks to recover all under payments for the affected workers.
The Governments response – they announced plans for a business services wage assessment tool payments scheme. But the catch was they had to wave all their legal rights to be eligible. The Minister announced this scheme was not to be taken as compensation.
On the 29th of April, we got a decision from the Australian Human Rights Commission. They granted a temporary exemption for the ADE’s to continue using BSWAT for a further 12 months; this was subject to some conditions. Those conditions were they had to report every 3 months. They had to transition out of BSWAT. 29th of July was the first 3 months, there has been no report from either the Government or the ADE’s.
The National Disability Services which is the peak body representing ADE’s describes the decision as reprehensible and they have made an application to the Australian Administrative Tribunal to have that decision removed. The difficulty with that is it takes time so we’re looking at a hearing for that in Feb/March next year, nearly 12 months after the initial decision.
They have to continue following the conditions which as I said before they haven’t done so. Whilst the Human Rights Commission decision foreshadows an end to BSWAT it obviously hasn’t been accepted by the Government or the peak body.
What we say here is that 1, the decision by the Australian Human Rights Commission but also by what’s been happening is you have to question the authority of Australia’s legal system. Further there’s application in the Fair Work Commission to bury the award.
On the 5th of June this year the Government introduced legislation into the House of Reps. This bill was introduced to effectively put the scheme into legislation. Only two members of the House of Reps voted against it – Adam Brandt and Andrew Wilkie. The rest voted for a scheme that we would say is discriminatory.
It then went to the Senate. The Senate has referred it to a Senate enquiry, submissions were called for obviously put in and the week before last there was a public enquiry where I went to give evidence. It was really interesting. Only a morning was given and the Department was given a number of questions. They made it very clear that they do not accept this decision.
As I said before it only applies to Michael Nojin and Gordon Prior. The other thing that came out was the intention of this scheme, which we disagree with the legislation. We believe it should not go through, was that only those employees who have listed as their primary disability as being intellectual disability will be eligible.
Gordon Prior who is visually impaired he has an intellectual disability he would not be eligible under the scheme. Michael Nojin cerebral palsy that is his primary disability, he is not eligible under the scheme.
We’re obviously appealing to the Senators not to allow it to go through. There was a report by the Parliamentary Joint Committee on human rights. They had it right, this scheme; this legislation should not be passed.
I’m not going to go into too much detail because probably time is over. What the scheme effectively does they’re saying they will pay 50 cents to the dollar of what people are owed. They’re also saying the secretary who has a conflict of interest because the Department is the respondent obviously in the legal matters that are going on, can appoint a nominee to stand in the shoes of the employee. Effectively that employee has no rights, if the nominee says accept the money you accept the money and they are not able to continue with their legal action.
I will just skip those. Basically, what was said by Josh Bornstein who is the principal at Maurice Blackburn is it is a blatant attempt to coheres some of our most vulnerable workers into signing away their legal rights for a sum of money, which is just half of what they should be paid. Where does this leave us, where does the Australian Constitution and separation of powers sit?
We have the executive, we have got the Parliament and we’ve got the legal system yet we’ve got the Government not abiding by the decision. Any other respondent or any other person who does not win their case is expected to abide by the law, why shouldn’t the Government?
Is this the end of employment for this group of workers within ADE’s, to return to the dark ages? We’ve dragged them out of the dark ages to get them recognised into employment yet what’s happening and what the intention is quite clear is that the Government intends to legislate the new tool.
That was during one of the speeches. The tool will be entwined in legislation and therefore very difficult to challenge. We don’t need a new tool. What’s wrong with the supported wage system? How we see it is despite the fight 12 years later employees with disability working in ADE’s are still being short changed.
Has anyone got any questions?
With all these changes for next year what’s going to be happening with the people that are on DSP? Do we have to go look for jobs?
That’s something different to what I’ve been talking about but my understanding is that what you have to do is every 3 months you have an appointment with Centrelink and Centrelink, the person you speak to at Centrelink will help you draw up your goals. Part of that is your goals to find employment.
I went to one the week before last and they wanted to know not just what the employment goals were but goals you might have for other activities – do you want to join the local gym, things like that. That’s the sort of question my client was asked. But yes the aim is to try and find employment from what I can understand.
Hi, this is Karen. It’s a question for you and for the previous speaker as well. I just wondered these systemic advocacy matters that you’ve taken up, I’m not sure if you would call them public interest matters or law reform matters, I just wondered how you came to take up these matters by each of your services?
As I said about 12 years ago I attended a few meetings where there was a lot of talk about we should be doing something about what people are being paid in business services as they were then. I thought we really shouldn’t just be talking we should be doing something.
So we started fighting, we intervened in the national wage case and it’s grown from there. But I really believed when we got the decision from the High Court that would be the end, the next step would be working out what people are owed.
Instead, there is about four or five different actions going on. The Government have spent so much money, legal fees alone into the millions we’re talking. We don’t obviously get any of that because we’re funded by the same Department. We have had our funding threatened by them in relation to it. To see every step of the way is a fight.
Even in the representative action, they are challenging the definition of intellectual disability, which is incredible. They’re the ones who write the legislation for Centrelink and so forth so why should they be challenging something like that.
It doesn’t matter which way you go it’s challenged, everything is challenged.
In relation to our action, Villamanta Disability Rights Legal Services predominately works for people with intellectual disability.
If the intellectual disability affects the legal issue or the legal issue affects the disability that’s the first step of us taking a matter on.
What we then do is ask ourselves the question is this a significant issue that needs to be addressed. Clearly in the case of the rent increase, it was a significant issue. They went on a course of emotional blackmail.
People ring us up and say please help me and sometimes the squeaky wheel makes a difference. In our case, it was of significant importance that people’s rights were defended.
As Kairsty has just said, there is an issue of funding. As I said in our case of course we’re up against QC’s and by the way there were three of them and it was just me, another lawyer sitting on the other side of the table just to pass documents.
In answer to your question both answers really are, we try to find something, which has a significance to the client group, and then we try and work out what we can do to assist.
Just to add to that and as Viv said the resources we’ve got two lawyers and we’ve got 350 clients. We’ve got a whole lot of other matters we’ve got to deal with. The resources that are put into these fights are huge.
We were lucky we had Holding Redlich come in on the first matter and now we’ve got Maurice Blackburn but we’re the ones who deal with the clients. It is so important and I think what happens is you end up living it, breathing it. It just becomes so much part of you.
We do our submission writing at midnight if we’re lucky.
I was just wondering if you had a view about this – I noticed in both of your speeches there was a definite move toward attitudinal change and social change but there seems to be a lot of resistance in the minds of politicians and getting that political change to happen and running those political campaigns.
Do either of you have a view on this, a need for self-advocates to start moving and start thinking about becoming more I guess political lobbyists?
Can I just answer in regards to that? I actually don’t believe it’s the Government here, it’s the Department. We’ve had a change of Government; we haven’t had a change of attitude.
We’ve got the same Department Heads, same Department Managers and they’re the ones who are having the influence. As I said putting in the application for an exemption during the caretaker mode, you’re not meant to do that. But it was done and I think unfortunately what we’ve got is a very…for some reason they’re determined to fight this. We weren’t lucky enough for the Government to walk away and say its okay.
I don’t understand why people can look at it and think its okay because you could be sure that if they were affected by it, if they had to lose part of their wage or they were paid a pittance that they would not.
Gordon Prior said to the Judge in the first instance you wouldn’t work for $2 a day so why should I and he is right.
Sorry, ask half a dozen lawyers a question you will get half a dozen different answers. I actually agree it was the Department in the case that we were running; it was against the Department of Human Services in disability services. There is a barrier in dealing with DHS.
In this case, however it was significantly a change in Government with a more libertarian political view than the previous Governments. It was the drive of the Minister to want to push disability accommodation services into the private sector, which drove this case. A bit of both I think.
Yes to your question, should people become more political advocates, absolutely.
I would like to thank Kairsty Wilson from AED Legal Centre for her presentation that was fantastic thank you.
And thank you again Viv Avery from villamanta disability rights legal service. If you don’t have any more questions we might as well wind up but we’re happy to take more questions.
There is one question, second row from the front. We will wait till you get the microphone.
I will show you the book, we have a few copies if you would like a book on how to do a community lobbying campaign about an important matter.
This one is for Kairsty. Do all ADE’s have to follow this tool and if they don’t is there some way that companies wanting to use them can find out whether they pay a more ethical wage?
Look BSWAT is gone. They’re not allowed to use it now at all. There are other tools that they obviously can use. Listed in the award for ADE’s it’s a bit confusing, you said AED. We were AED before they became ADE’s.
Under this award, there is 30 tools that can be used. We haven’t challenged the other 29 but they all have elements of competency. Our argument would be they are not allowed to be used either. However, that’s a battle yet to come.
The supported wage is also listed in the award and that’s the one that can be used. What they’re saying is that if they use the supported wage system the viability of ADE’s will be in question. Now we’ve seen no financial evidence, we realise there will be some that will have an impact however they’ve presented no financial documents or evidence to show they will not be able to operate. Did I answer your question?
If you’re in a company that wants to ensure it’s giving a contract to an ethical provider is there any way you can find that out or any questions you should ask?
Sorry I misunderstood the question. That’s if you want them for example to pack your muesli bars. Yes you can, you can ask how they pay the wages. You’ve got a right to know.
We found it difficult to find out who is paying under which wage tool although we know that there’s more than half of them have been using BSWAT. The reason they’ve used BSWAT the Government because they designed it they also paid for the assessors to go out and do the assessment.
Supported wage is another one because that’s also owned by the Government, they also if they go out and do the assessments wouldn’t have to pay for it. I think there are certainly questions private companies should be asking. That’s a big thing. Slave labour that sort of thing, that’s effectively what it is.
Thanks Kairsty, just one little ps from Viv maybe one more question and then Viv will just briefly speak about the issue is there a better way and have we learnt something so that next time we will do things differently.
If we could just have the one question then we will hand over to Viv and then wind up and have lunch.
Kairsty question for you again. In relation to BSWAT you just said it’s no longer in use or not meant to be used, correct?
Well with the exemption that they were given they were granted 12 months. So no new employees can be assessed by it. They have to be assessed by either a supported wage or another tool. They are still paying under BSWAT for 12 months. By the 29th of April next year, nobody should be being paid under BSWAT at all.
One of the objectives of this session was for us to give a talk and then to discuss from the floor is there a better way. We don’t have a lot of time unless there is some suggestions to come from the floor, is there a way we could’ve done it better?
From our perspective, I think Kairsty did an absolutely brilliant job in the matter she was running. From our perspective, I think we did a fairly good job.
There were things we didn’t do. We didn’t have a coordinated effort to bring all the streams together the political, social and the legal. We ran off and did our own thing, we did one and did the other and that may have made a significant difference. We didn’t use social media as much as we should’ve done. Social media would’ve been very effective particularly a targeted social media campaign.
And irrespective of the fact that we’re lawyers and we like to look at things in the law just to give you an example when we ran the jurisdiction between and or, I found that absolutely fascinating and you probably wouldn’t. Lawyers look at things differently to normal people, means lawyers aren’t normal.
The social campaign would’ve made a huge difference because it would’ve been out there, there would’ve been pressure. What Graham said earlier on about one letter, one visit to the politicians is absolutely true. So had we been more coordinated we possibly would’ve done slightly differently. That’s just my addition.