Abbott government likely to ask for deadline extension on disability wage
The Abbott government is likely to have to ask the Human Rights Commission for extra time to come up with a new system to determine fair wages for thousands of intellectually disabled workers, three years after the old system was declared discriminatory.
The prime minister recently said in the president of the commission, Gillian Triggs, over the commission’s report on children in immigration detention. Last year the government abolished the role of disability commissioner.
But the government is now likely to be forced to ask the commission for an extension to an April deadline for it to come up with a new, fair “assessment tool” to determine pay for disabled workers – to avoid being in breach of the Discrimination Act.
The former disability commissioner Graeme Innes told Guardian Australia he could see no reason for the government to be granted that exemption.
In 2012 the federal court found the old system to calculate the pay of workers employed by disability enterprises – once known as sheltered workshops – discriminated against two workers. An appeal to the high court was unsuccessful.
During the caretaker period of the last election campaign the department of social services applied to the Human Rights Commission for a three-year exemption from the Disability Discrimination Act to give it time to develop a new, fair assessment tool. It was granted a single year, which expires in April.
Guardian Australia understands a new assessment tool is not yet ready, and the government is likely to have to ask the commission for more time. The decision would be taken by the full commission.
Innes, who was still a commissioner when last year’s decision was made, said “that decision set out a course of action the government needed to take ... I have not seen evidence they have done that, so I would have thought it would be difficult for them to argue that they should get a further extension.”
Innes said if the government did not get an extension, workers with disabilities could lodge complaints and possibly seek damages.
But Dr Ken Baker, the chief executive of National Disability Services said one year was always an unreasonable timeframe.
“A new tool is being developed under the guidance of the Fair Work Commission, and the government has provided money to develop and implement it, but it is technically challenging and it takes time,” he said.
He said about one third of disability organisations had already moved to different payment schemes. But if the commission did not grant the commonwealth an extension, many organisations would be in contravention of the act.
At the same time, the government has failed to pass legislation which offers employees with disabilities half the backpay to which they might be entitled, on the condition that they shun legal action designed to recover the full amount.
The bill implementing the back pay deal – – was rejected by the Senate in November. It was to be voted on again this week but has now been dropped down the priority list and won’t be voted on until June. Crucial crossbenchers remain undecided.
The legislation is opposed by the Greens, and Labor has refused to support it unless the government agrees to allow recipients of the 50% offer to also be part of a class action that has been launched by Maurice Blackburn lawyers seeking to recover 100% of the unpaid wages on behalf of about 10,000 workers.
The assistant social services minister, Mitch Fifield, has said the legislation offers workers with diasbilities certainty.
“At the moment the only avenue that people have is the [legal] representative action,” he said. “What we’re saying is that we would like people with disability ... who feel that they may have had an economic loss, that they should have an additional option. They can obviously accept their legal rights and pursue that through the courts, or they can pursue our streamlined process and get certainty and an amount of money sooner,” he said last week.
“We don’t know what the outcome of the court could be. It could be less, there could be a determination that there isn’t discrimination, we just don’t know what the outcome of the courts will be. So what we’re doing is we’re offering certainty.”
Maurice Blackburn lawyer Josh Bornstein accused the government of deliberately dragging out the court case in order to increase pressure on crossbench senators to pass the back pay bill.
“The government is dragging out legal action designed to ensure the workers get their back pay while seeking to legislate to overturn the court’s decision. Fifteen months after being launched, the case to force the government to back pay the workers has barely progressed, bogged down by highly technical requests by government lawyers,” he said.
“Meanwhile the workers continue to be paid as little as 99 cents per hour. Three years after the federal court decision, the federal government still hasn’t implemented a lawful wage system for the employees.”
In 2012, the federal court found that the existing pay assessment system was “skewed against intellectually disabled workers”. There are about 190 Australian disability enterprises in Australia providing work in areas such as gardening, packaging and cleaning.