Historic Class Action Settlement for Workers With Intellectual Disabilities

As many as 10,000 workers with intellectual disabilities could be paid compensation in excess of $100 million after the Federal Court approved a historic class action settlement.

The agreement, reached between the federal government and Maurice Blackburn Lawyers, follows a class action suit launched in 2013, alleging that disabled workers employed in Australian Disability Enterprises had been underpaid.

Tyson Duval-Comrie, the lead plaintiff in the case, claimed the Business Services Wage Assessment Tool (BSWAT), the federal government system of calculating wages, discriminated against people with intellectual disabilities and violated disability discrimination laws.

Following a long-running fight to secure back pay for the workers, this latest decision paves the way for the workers – many of whom had been earning as little as 99 cents an hour – to secure compensation and be paid directly by the government.

Josh Bornstein, a principal at Maurice Blackburn, said it was a “historic outcome” and 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,” Bornstein 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.”

Maurice Blackburn said the catalyst for the class action was a 2012 case brought against the Commonwealth by two individual workers with intellectual disabilities.

Following that case, the Federal Court decided for the first time 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 ADE continued to be paid under BSWAT and the Commonwealth refused to compensate them.

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

Approximately 10,000 supported employees with intellectual impairment will now be eligible to receive a one-off payment of $100 or more through the BSWAT Payment Scheme, administered by the Department of Social Services.

Assistant Minister for Social Services and Disability Services Jane Prentice said the decision was good news for eligible supported employees.

“Payments will take into account taxation, and will not generally affect Centrelink payments. This is only possible because the government established the BSWAT Payment Scheme Act,” Prentice said.

“We know that many people have been waiting for the class action to settle before registering for the scheme and we encourage anyone who thinks they may eligible to lodge an application for payment.

“It is important that people affected are paid fairly.”

Prentice said the Australian Government was committed to supporting Australians with disability to participate in all aspects of society and the economy.

“Australian Disability Enterprises (ADEs) provide employment opportunities for some 20,000 workers,” she said.

“ADEs allow people with disability an opportunity for social interaction and to contribute to their local community through work and will continue to play an important role in the lives of people disability into the future.”

Workers can register for the BSWAT Payment Scheme here. Employees must register by 30 April 2017 to be considered for payment under the scheme.