Lawyers for 10,000 intellectually disabled workers to seek court order over Federal Government’s payment scheme

20 January 2014
Maurice Blackburn Lawyers will today lodge an application for court orders to prevent the Federal Government from misleading intellectually disabled employees into signing away their legal rights.

Maurice Blackburn Lawyers will today lodge an application for court orders to prevent the Federal Government from misleading intellectually disabled employees into signing away their legal rights.

Last week the Government announced plans to establish a payment scheme for intellectually disabled workers who have been underpaid while working at sheltered workshops.                  

The Government's offer came just weeks after Maurice Blackburn lodged a class action discrimination claim seeking to recover all underpayments for the 10,000 affected workers.

The head of Maurice Blackburn's employment law practice, Josh Bornstein, condemned the Government's move as an attack on the working poor.

He said the Government scheme was not only short on detail - including the amount of money to be paid - but also unfairly required workers to waive their legal rights to take part in the class action.

"This is an attack on some of the most vulnerable people in our community, in this case the intellectually disabled working poor," Mr Bornstein said.

"Today's application for court orders is to ensure these underpaid workers are not duped into signing away their legal rights by the Government's offer to part pay them their entitlements.

"The Government is encouraging workers to waive their legal entitlements by claiming that a one-off payment will be made more quickly than any payment through the legal process.

"But the Government can sit down and finalise a payment arrangement with us at any time. It should come to the negotiating table and discuss a fair compensation settlement."

The class action followed decisions by the full Federal Court confirming that the employees have been subjected to years of unlawful underpayment in breach of the Disability Discrimination Act.

Lawyers have been acting for the intellectually disabled workers on a pro bono basis since 2009.

"These workers can earn less than a dollar per hour. They live in one of the wealthiest countries in the world, and they work in an economy that has benefited from 22 years of consecutive economic growth," Mr Bornstein said.

"But the Government has fought these workers every step of the way. In the past we have seen multinational corporations try to subvert class action proceedings by similar behaviour. However, this is a first for the Federal Government."

The application to be lodged at the Federal Court today will ask for all communication between the Government and the intellectually disabled workers involved in the discrimination claim to be supervised by the court, to ensure workers are not misled or unfairly pressured into waiving their legal rights.

Around the country there are more than 300 Australian Disability Enterprises - formerly known as sheltered workshops - employing around 20,000 disabled people in work including packaging, manufacturing and cleaning.

The Business Services Wage Assessment Tool, which is used to determine pro-rata wages for people working at these disability enterprises, was found by the full Federal Court in 2012 to unlawfully discriminate against people with intellectual disabilities.

The High Court refused the Commonwealth's application for special leave to appeal in May 2013. Nonetheless, intellectually disabled workers continue to be paid under the tool.

Kairsty Wilson from AED Legal Centre, who represented workers in the 2012 Federal Court case, said the wage assessment tool included theoretical and abstract concepts that disadvantaged people with intellectual disabilities.

"This unfair and discriminatory wage assessment tool has caused thousands of intellectually disabled workers to be underpaid," Ms Wilson said.

"Many of these workers were already earning well below minimum wages, and this tool has cut their pay to as little as less than a dollar per hour."

Mr Bornstein said it was extraordinary that the Government continued to use the wage assessment tool given it had already been found to be unlawfully discriminatory.

"This class action is about getting the Australian Government to commit to ensuring a decent wage for some of our most vulnerable workers."

The discrimination claim on behalf of the workers is seeking an end to the use of the wage assessment tool as well as compensation for underpayment of wages due to the unlawful discrimination.

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