Court approves historic class action settlement for workers with intellectual disabilities

16 December 2016
About 10,000 workers with intellectual disabilities could be paid compensation estimated to exceed $100 million after the Federal Court approved an historic agreement reached between Maurice Blackburn Lawyers and the Federal Government.

Today’s class action settlement approval paves the way for the workers – many who had been earning as little as 99 cents an hour – to register with the Department of Social Security to secure their compensation and be paid directly by the Federal Government. 

Maurice Blackburn launched the class action against the Commonwealth of Australia in the Federal Court in 2013, alleging that disabled workers working in Australian Disability Enterprises had been underpaid in breach of disability discrimination laws.

In March this year, the Business Services Wage Assessment Tool Payment Scheme Amendment Act 2016 was passed, giving effect to the class action settlement by requiring the Commonwealth to pay each affected worker 70 per cent of the amount claimed in the legal action.

Josh Bornstein, a principal at Maurice Blackburn, welcomed today’s court approval, which he said followed a long and arduous David and Goliath struggle for the employees.

“This class action settlement will help to right the wrongs that have been committed against workers with intellectual disabilities, many of whom live below the poverty line. It is a great advance for workers with disabilities in this country,” he said.

“This historic outcome would never 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 who refused to give up.”

But Mr Bornstein said the workers must register with the Department of Social Services, which is administering the payment scheme, before 30 April 2017 to determine their eligibility and receive any entitlements.

Class action lead plaintiff Tyson Duval-Comrie claimed 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.

In a 2012 case that was brought against the Commonwealth by two individual workers with intellectual disabilities, the Full Federal Court decided 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 Australian Disability Enterprises continued to be paid under BSWAT and the Commonwealth refused to compensate them for their underpayment.

Some Australian Disability Enterprises 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 prompted the Federal Government to try to introduce legislation limiting its liability to 50 per cent 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.

Workers can register for the payment scheme by calling the Department on 1800 799 515, visiting the website at https://bswat.dss.gov.au/ or emailing bswatpayments@dss.gov.au to be sent an application form to complete.

A person can apply for the scheme on behalf of a deceased person who would otherwise have been eligible for the scheme.

More information: https://www.dss.gov.au/our-responsibilities/disability-and-carers/programmes-services/for-people-with-disability/bswat-payment-scheme/bswat-payment-scheme-process#register

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