Harpur: Aussie Wage-Setting Tool Found Discriminatory

Paul Harpur (Queensland) writes to tell us that an Australian disability wage-setting tool has been found discriminatory, and that the Australian government has agreed to pay 9,735 intellectual disabled workers entitlements which may reach $100 million AUD. Here's Paul's analysis:

An Australian government disability wage setting tool used to assess the wages of intellectually disabled workers who were employed in an Australian Disability Enterprise (a form of government subsidized employment) resulted in people with certain disabilities being under paid. 

The tool in question, the Business Services Wage Assessment Tool, was used to determine how much each worker should be paid and if they were entitled to wage increases.

It was alleged that the imposition of the condition or requirement that wages be fixed using the tool amounted to indirect disability discrimination within the meaning of s 6 of the Disability Discrimination Act 1992 (Cth).  

The tool fixed the amount of a wage by an assessment of competency and of productivity.  The assessment of competency was made by reference to eight elements.   Some of these competencies were irrelevant to the work actually undertaken by workers and the assessment processes relating to other competencies was flawed.  The assessment processes used abstract answers in an interview situation with intellectually disabled workers.  If workers did not provide a prescribed response they scored zero.

The Australian government accepted that this tool was discriminatory and has agreed to pay back  wages for thousands of workers.  The government introduced legislation to create a framework to repay wages in the Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth) (see also the Business Services Wage Assessment Tool Payment Scheme Bill 2014 (Cth) Explanatory Memorandum) and on 16 December 2016 the wage claims and discrimination claims by a class of 9,735 workers was approved by the Federal Court of Australia in Duval-Cowrie v Commonwealth of Australia (2016) FCA 1523.  The length and size of these under payments are substantial and are estimated to cost the Australian government $100 million AUD.

 

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