Maurice Blackburn secures historic settlement in class action for intellectually disabled employees

21 December 2015
A five-year struggle to improve the wages of about 10,000 workers with intellectual disabilities is set to end after an historic agreement was reached by Maurice Blackburn Lawyers on behalf of the workers, and the Federal Government.

The agreement means that the workers, who had been earning as little as .99 cents-an-hour will receive substantial back pay.

But further legislation has to be introduced by the Federal Government in February 2016 before the agreement can be implemented.

Josh Bornstein, a principal at Maurice Blackburn, welcomed the settlement, which is subject to Federal Court approval. He called on all parliamentarians from the ALP, Greens, PUP and independents to support the further legislation when it is introduced in the new year.

“After a long and arduous struggle, we are delighted that the Government finally came to the negotiating table and reached a terrific settlement that represents 70% of the back pay claim. It means that workers with an intellectual disability who were underpaid will be compensated fairly for the systemic discrimination they have suffered,” he said.

“The affected workers will receive an amount directly from the government in a scheme administered by the government. This would not have happened without the class action and the determined advocacy of a small and under resourced but dedicated group that included lawyers and disability advocates.”

The class action was launched against the Commonwealth of Australia in the Federal Court in 2013 and alleged that disabled workers working in Australian Disability Enterprises were being unfairly discriminated against.

Lead plaintiff Tyson Duval-Comrie claimed that the use of the Federal Government’s Business Services Wage Assessment Tool (BSWAT) to determine pro-rata wages for people working at Australian Disability Enterprises discriminated against people with intellectual disabilities, in contravention of the Disability Discrimination Act 1992.

The Full Federal Court decided in a 2012 case that was brought against the Commonwealth by two individual workers with intellectual disabilities that using BSWAT to set the wages of intellectually disabled workers was discriminatory and contravened the Act.

While the High Court refused the Commonwealth’s application for special leave to appeal in May 2013, workers with intellectual disabilities in ADEs continued to be paid under BSWAT and the Commonwealth refused to compensate them for their under payment. Some ADEs bitterly opposed the class action and instigated a scare campaign suggesting that if the case proceeded, the workers would lose their jobs.

The class action sought an end to the discrimination, and compensation for those workers who have lost wages as a result of the discrimination. It prompted the Federal Government to try to introduce legislation limiting its liability to 50% of the back pay claim. After several failed attempts to pass the legislation, it finally succeeded in getting the legislation through the Senate in mid-2014. However, the Commonwealth subsequently agreed to participate in mediation in relation to the class action, which produced the agreement.

Mr Bornstein said the case highlighted the important role class actions played within the legal system, making it economically viable for a group of people, many of whom live below the poverty line, to pursue their legal rights.