Sydney Morning Herald – Most Vulnerable Workers Caught in Back-Pay Standoff

From the Sydney Morning Herald

Most vulnerable Workers Caught in Back-Pay Standoff
May 12, 2015

Josh Bornstein

llustration: Kerrie Leishman Photo: Kerrie Leishman

llustration: Kerrie Leishman Photo: Kerrie Leishman

On election night in November 2013, a victorious Tony Abbott spoke graciously, foreshadowing an inclusive approach to the first term of his new government:

“A good government,” he said, “governs for all Australians, including those who haven’t voted for it”. It has “a duty to help everyone to maximise his or her potential. Indigenous people. People with disabilities … we will not leave anyone behind.”

In its short but eventful life since that night, the Abbott government has taken aim at an unprecedented array of low-paid and disadvantaged groups. It started with low-paid SPC employees before moving to aged care and childcare employees, the unemployed, clients of community legal centres, pensioners, those on disability pensions, those with the lowest superannuation funds. There has been nothing subtle about this process.

Among this hierarchy of disadvantage, employees with intellectual disability are arguably unique. They are invisible to most of us most of the time. There is no union that represents their interests. If it is choosing an easy target for mistreatment, a government need not look any further.

In late 2012, the Federal Court handed down an important decision in a test case on wage rates for employees with intellectual disabilities working in government-supported Australian Disability Enterprises. The Court determined that the wages of two workers had been slashed illegally when in 2003 the federal government mandated a new wage calculating system, known as BSWAT.

The Court found that BSWAT breached the Disability Discrimination Act because it reduced “wages to which intellectually disabled workers would otherwise be entitled by reference to considerations which do not bear upon the work that they actually do”.

The decision had two immediate consequences: up to 10,000 intellectually disabled workers were owed back-pay by the Commonwealth.To this day, some are being paid as little as 99¢ an hour, about 8 per cent of the minimum wage. Secondly, ADEs needed to start paying these workers lawful wages. To date, neither of those things have happened.

Instead, the Commonwealth government tried to appeal to the High Court. When that failed, it sought a three-year exemption from the requirements of the Disability Discrimination Act. That failed too.

The government has refused to pay the workers their back-pay. Why? Because it can.

As it became clear that the government was intent on refusing to pay the back-pay it owed, further legal action in the form of a class action was instituted by a team of lawyers acting pro bono. I am one of those lawyers. Undeterred, the government continued with its cat and mouse strategy to chisel the disabled workers. It tried to cut a deal directly with them to settle for up to half of their back-pay. Urgent court intervention skittled that tactic.

That setback led to an even more desperate manoeuvre: the government introduced extraordinary legislation designed to defeat the legal action and by doing so, subvert disability discrimination laws. The bill, which aimed once again to entice the workers to accept an immediate payment of up to half of what they are owed, in exchange for not pursuing the other half, was voted down by the Senate in December 2014, by one vote.

Within minutes of the Senate vote, Social Welfare Minister, Senator Mitch Fifield, told crossbench Senators that they had destroyed disability wage policy in Australia and he would not accept their decision. The bill is now back before the Senate once again.

All the while, the Abbott government has fanned a scare campaign directed with the utmost cynicism at parents of intellectually disabled workers. The campaign’s key message is: if the government is forced to pay what it owes, your kids will be sacked. Senator Fifield who has disingenuously claimed that “there is a very real possibility of job losses” if the bill is rejected, has enlisted the support of some influential ADEs in prosecuting the campaign. Although it is the government and not the ADEs that are liable for the back-pay, the ADEs have also instilled fear into the families of intellectually disabled workers by suggesting that the workers may be sacked if the government is required to pay what is owed.

The current homepage of the ADE website details how “scores of businesses employing people with a disability could be forced to close and thousands could lose their jobs as a result of a legal ruling which found some workers had been discriminated against”.

This website also encourages parents to lobby crossbench Senators to support the government bill that seeks to substantially reduce the back-pay provided to their children. Why would a parent lobby a Senator to block the payment of backpay to their child? Fear.

The Endeavour Foundation is Australia’s largest ADE and it has aggressively prosecuted the campaign. It’s chief executive, David Barbagallo​, is outspoken about the lack of profit generated by some ADEs. He also told a Senate inquiry into the bill that:

“On the principal issue around discrimination on the basis of disability, I disagree with the judges, I think they are wrong … in an ideal world, we would have just worked on the BSWAT”.

Meanwhile the class action is moving at glacial pace as lawyers for the Commonwealth take highly technical and time-consuming points. Government lawyers have been corresponding with my colleagues and I for months over the content of an “opt out notice”, a form that allows any affected employee to choose not to be part of the class action.

The government bill is now scheduled for a further vote of the Senate in May. Senator Fifield has taken to the airwaves to sell the bill, including an “interview” with 2GB’s Alan Jones. Jones described the Australian Human Rights Commission as “the Gillian Triggs mob, whom you wouldn’t feed”. If the parliament of one of the wealthiest countries in the world votes to nickel and dime Australia’s lowest paid workers, many of whom live well below the poverty line, as many people as possible should know about it.

Josh Bornstein is a lawyer with Maurice Blackburn.

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