Who can make a complaint?

You can make a complaint about something that happened to you or you can ask an advocate, family member, friend, or lawyer to make the complaint on your behalf.

You can also make a complaint about something that happened to another person if:

you are that person’s parent or guardian
you have legal authority to act on behalf of that person
the person gave you permission to act on their behalf (it helps to get that in writing).

Before you lodge a complaint, you should obtain advice from the Disability Discrimination Legal Service or another lawyer.

What if the discrimination happens to a group of people?

The law allows you to make a complaint on behalf of a group of other people. This is called a representative complaint or class action. It must involve a number of people who experience the same type of discrimination by the same person/organisation and are asking for the same solution to the discrimination.

Under representative complaints or class actions, people who are discriminated against but do not have the resources to make a complaint can benefit from the outcome of the complaint.

If you wish to make this kind of complaint, it is better if you meet with as many people that you can find who are experiencing the same discrimination. You may need to seek legal advice from the Disability Discrimination Legal Service or another lawyer.

Case study 15 – Wage setting system discriminatory for workers with intellectual disability

Nojin v Commonwealth of Australia and Another, 2012, Federal Court of Australia

Facts: Two employees with intellectual disabilities worked in separate businesses that both used the Business Service Wage Assessment Tool (BSWAT). Their employers used the BSWAT to measure how much work their employees had done by asking them a broad range of questions. The data and results were then used to assess and set wages. Both employees claimed that the device was unfair for those who had intellectual disabilities.

Decision: The Federal Court of Australia found that the wage setting process was discriminatory against those with an intellectual disability. The BSWAT was not flexible in responding to all types of disabilities and that the way it assessed productivity had little to do with the competency of the worker.

Case study 16 – Class action finds against wage setting system in ADEs

Duval-Comrie v Commonwealth of Australia, 2016, Federal Court of Australia

Facts: After the court decision in the Nojin case (above), Tyson Duval-Comrie made a representative complaint. He said the use of BSWAT discriminated against people with intellectual disabilities who were or had been employed at Australia Disability Enterprises (ADEs), a business in which the majority of employees have disabilities. The work generally includes gardening, packing and destroying confidential documents.

BSWAT was the single most common wage assessment tool used in ADEs and was used, at the time of Mr Duval-Comrie’s complaint, by more than 100 ADEs. Thousands of people were discriminated against and were paid less than they deserved.

Decision: The court approved a settlement of the case. Among other measures, the Commonwealth Government agreed to pay 70% of the compensation owed to employees.

I’m a volunteer: am I protected from discrimination?

Volunteers are generally understood to be community minded people who give their time and skill on a voluntary basis without expecting to be paid.

If you work for free and do not get paid, you are not an employee. You cannot complain of disability discrimination but you can make a complaint under the following circumstances:

If you have been sexually harassed by another person or volunteer who works for the organisation, or
if you are also receiving services from the organisation, in which case the discrimination is not in employment but in the provision of services.

If you started as a volunteer but later on the manager gives you specific work, controls what you do and gives you an agreed amount of money for that work, you may be considered an employee under discrimination law.

If you get any of the following benefits in exchange for your volunteer work you will NOT be considered to be an employee:

meal allowance
taxi voucher or train travel card
ticket to movies or concerts
gifts in kind.

Who can make a complaint?

What if the discrimination happens to a group of people?

I’m a volunteer: am I protected from discrimination?

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