Cain, Paul --- "All the way to the moon and back: Ending discrimination against people with intellectual disability in employment" [2014] PrecedentAULA 64; (2014) 125 Precedent 46

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ALL THE WAY TO THE MOON AND BACK

ENDING DISCRIMINATION AGAINST PEOPLE WITH INTELLECTUAL DISABILITY IN EMPLOYMENT

By Paul Cain

The 20th century witnessed substantial change in human society. The bending of a piece of steel into a cylinder and propelling it to the moon with a few men inside is perhaps the greatest symbol of achievement of this period. Landing on the moon and returning safely back to earth forever changed our view of ourselves and what we were capable of achieving.

The field of people with intellectual disability and employment had its own ‘going to the moon’ moment. Beginning in the 1950s, UK and US researchers demonstrated that with the right instruction, people with significant intellectual disability could be taught to perform many routine job tasks in the open labour market.^[1]

While not as breathtaking as walking on the moon, and with feet firmly on the earth, research and demonstration changed forever our understanding of the capacity of people with intellectual disability to perform productive jobs in the open labour market.

Our society and disability service system had, however, presumed for many generations that people with intellectual disability could not develop the skills to join ‘us’ in our schools, our workplaces, or live in our communities.

As a consequence, we became expert at separating and grouping people with intellectual disability in ‘special places’ which, in its worst historical moment, institutionalised people with intellectual disability in large numbers.

The vocational research, however, developed a ‘training technology’ for people with intellectual disability to equip them to participate in the open workforce, questioning long-held beliefs about why we should continue to exclude this group of people.

Segregation could no longer be justified on the basis of productive capacity. Of course, segregation on the basis of individual human difference – be it gender, race, religion or disability – is a practice that is no longer regarded as complying with basic human rights.

A NEW DIRECTION

The research and demonstration posed a major challenge. How could we change attitudes about people with intellectual disability which were so ingrained in our society? How were we going to learn the new skills of supporting people with intellectual disability as ‘one of us’ in our classrooms, workplaces and communities?

The federal Labor government introduced the Disability Services Act 1986 (Cth) (DSA) to fund new employment service models to help people with disability, previously thought incapable, to work in the open labour market. This new law was promoted as Disability, Society and Change.

The DSA set down principles and objectives^[2] which featured a recognition of the equal rights of people with disabilities; integration as an objective of service (as opposed to segregation); and the expectation that people with disability assisted into jobs would receive the same fair employment conditions as any Australian.

With one bold step, Australia set off on a new direction to include people with intellectual disability in the labour force as equals. New employment services emerged after 1986 to place, train and provide ongoing support to people with intellectual disability in jobs in the open labour market. Whereas some Australian services today achieve open employment outcomes for people with intellectual disability, the support skills identified by the researchers from the 1950s have not (yet) become the default skills of the specialist Australian employment service sector.^[3]

With just 8 per cent of Australian adults with intellectual disability today working in the open labour market,^[4] we are still in our infancy in figuring out how to change the life path of people with intellectual disability from pension and segregation, to wages and inclusion.

Our ability to change old habits has proven far more difficult than figuring out how to train and support a person with significant intellectual disability to work in the open labour market. Demonstrating our ability to ‘go to the moon and back’ may not be enough to effect change. Our will or commitment to make the change remains our greatest barrier.

INDUSTRIAL RELATIONS SOLUTION

To help employers hire people with significant disability, the Australian Industrial Relations Commission in 1994 established the Supported Wage System (SWS).^[5] The SWS provides for the payment of pro-rata award wages when a person with disability is unable to work at the productivity level of an award pay rate. It does this by assessing the productivity of the worker against the productivity of workers without disability undertaking the same tasks or duties.

Not all people with intellectual disability need a SWS assessment. The majority of people with intellectual disability in the open labour market earn the same award wage pay rates as other Australians doing the same work. The SWS provides a solution for employers only when an employee is unable to work at a level of productivity to earn a full award wage.

Most stakeholders view the SWS positively, as it provides the opportunity for people who may otherwise be excluded from the open labour market to enter into below award wage arrangements with employers considered fair and lawful under disability discrimination laws.

“CANBERRA, WE HAVE A PROBLEM!”

The employment services that existed before the DSA – sheltered workshops – did not endorse the new direction of integration. These services continued to promote the old assumptions that people with intellectual disability are incapable of working in the open labour market, and need to be grouped together in separate businesses.

Over time, successive Commonwealth governments and administrators have succumbed to the sheltered workshop lobby and agreed to recognise this employment practice as part of the DSA. To support the perception of change, sheltered workshops were classified under the Act as ‘supported employment’, although this was not the original intention of this category of employment assistance. Sheltered workshops have been marketed as ‘business services’ and more recently known as ‘Australian Disability Enterprises’ (ADEs).

The Commonwealth has assisted ADEs to achieve a false legitimacy under the DSA. This has been achieved by watering down the Act’s definition of ’integration’ to the point where standards audits certify the segregation of people with intellectual disability. The Commonwealth has also promoted a wide variety of wage assessment tools that are questionable in their validity and fairness.

This false legitimacy under the DSA has undermined the original intent and object of the Act, which was to fund disability services to support and include people with disabilities in the workforce alongside people without disabilities on the basis of equality.

In many respects, we have failed to achieve ‘lift off’ on a national scale.

OLD, DISCREDITED THEORIES

The Commonwealth frequently advocates a ‘continuum’ theory of service to justify the ongoing funding of ADEs. This is an old theory which believes in a series of service support models from segregation (most restrictive) to integration or inclusion (least restrictive) based on the level of impairment or support need of individuals.

The continuum theory is conceptually flawed.^[6] It ignores the actual vocational research findings which demonstrate that people with intellectual disability can effectively be supported in inclusive or integrated employment settings. The level of disability is not an indicator of a need to be segregated. The level of disability is an indicator of the specialist skill or ‘power’ required to achieve inclusion.

The ‘continuum theory’ is often associated with the ‘flow-through’ theory. This posits that individuals with significant disability can graduate from segregated models of support to integrated or inclusive support models over time. This theory is also conceptually flawed.^[7]

Vocational research in the 1970s found that placement of people with disability in segregated employment settings is almost always a terminal placement.^[8] While there are exceptions, movement of individuals from segregated to inclusive settings is rare. This is almost always because people with intellectual disability have limited ability to generalise and transfer skills from one setting to another. It is much more effective to teach the skills they need in the setting in which they will be used.

Open employment assistance, in coherence with the research, involves the placement of an individual with significant intellectual disability directly in a job with the provision of on-the-job training and support. This is known as ‘place and train’. Comparative research has shown that the ‘place and train’ model of employment is far more effective in terms of achieving open employment outcomes and also more cost effective than the ‘flow-through’ model.^[9]

The promotion of outmoded, false theories has been used to justify the continued segregation of people with intellectual disability as if this was based on evidence. This prevents the active building of skilled support to assist people with intellectual disability to be included in the open labour market.

NOJIN v COMMONWEALTH OF AUSTRALIA [2012] FCAFC 192

Most of the approximately 15,000 people with intellectual disability currently employed in about 188 ADEs are paid below-award wages based on wage assessment tools other than the SWS.

While consumer advocates have known for many years that wage assessments (other than the SWS) in ADEs are probably discriminatory, the issue of fair remuneration has recently come to the attention of our highest courts.

In 2008, two Australians with intellectual disability made a disability discrimination complaint. They said their employers (ADEs) discriminated against them by using the Business Services Wage Assessment Tool (BSWAT) to assess their wages.

BSWAT is a wage assessment tool designed and implemented by the Commonwealth and currently used to determine below-award wages for approximately 10,000 employees with intellectual disability. It involves the assessment of productivity similar to SWS, but also includes an assessment of general and industry-based competencies derived from the Australian Quality Training Framework.^[10]

The Full Court of the Federal Court in Nojin v Commonwealth found BSWAT to be unlawful under the Disability Discrimination Act 1992 (DDA). Buchanan J found ‘the criticism of BSWAT is compelling’ [142] and ‘BSWAT is skewed against intellectually disabled workers.’ [141]

Buchanan J also found that the ‘competency elements of BSWAT have the effect of discounting [wages] even more severely than would otherwise be the case’ [142] for workers with intellectual disability.

Buchanan J found this disadvantage is imposed on workers with intellectual disability as a class of people, stating that BSWAT ‘is discriminatory in the wider and less technical sense of the term so far as intellectually disabled workers are concerned’. [139]

The High Court of Australia agreed with the Court’s decision in May 2013. Crennan J stated:

‘The Full Court of the Federal Court, by a majority, concluded that the use of the BSWAT disadvantaged intellectually disabled persons. Although it was widely used, it was not reasonable. One component of the BSWAT involves the assessment of a person’s competencies in the workplace. The unchallenged expert evidence was that the BSWAT produced a differential effect for intellectually disabled persons and reduced their score. We see no reason to doubt the conclusions of the Full Court.’^[11]

As an indication of the severe effect of the competency assessment, in 2008 the average productivity score for workers with intellectual disability was 36.2 per cent. The average competency score for the same population was 5.7 per cent.^[12] As productivity and competency scores were each weighted at 50 per cent of the award wage, the competency assessment approximately halved the potential award-based wages of employees.

The examination of BSWAT by the Full Federal Court and the High Court exposed the discrimination and disadvantage that this wage assessment tool had imposed on workers with intellectual disability since 2004.

THE LAUNCH HAS BEEN DELAYED

The Nojin v Commonwealth decision has implications for thousands of people with intellectual disability and their families, with the Court’s decision presenting a number of immediate concerns and questions.

The Commonwealth, industrial relations authorities, paid consultants, representatives of ADEs, and at times the union movement, have all supported BSWAT and defended its use as legitimate and fair. In contrast, representatives of people with intellectual disability and legal advocates have, from the beginning, raised substantial concerns about the competency assessment component of BSWAT.

It took the complaints of two individuals with intellectual disability and their families to courageously bring BSWAT to the courts to press their fundamental right to be treated without discrimination. In so doing, the Full Federal Court found the criticism of BSWAT to be ‘compelling’.

Why then, were so many authorities unable to see that BSWAT was discriminatory? Could it be that, as a nation, we still believe it is acceptable to treat people with intellectual disability so negatively?

Many disability advocates expected that the Commonwealth would accept the Court’s decision, apologise, readily offer compensation, and redress this situation by abolishing the BSWAT and ensuring that employee wages were determined via the SWS to ensure fairness.

Instead, we have witnessed a defence of disability discrimination that puts our nation’s commitment to equality to shame. We are not going to the moon: the launch has been delayed.

AVOIDANCE THROUGH FEAR

Unfortunately a feature of the Commonwealth and ADE’s strategy to address the implications of Nojin v Commonwealth of Australia has been to generate fear among workers with intellectual disability and their families.

This fear message is simple: If you insist on fair non-discriminatory wages, then your sheltered workshop will become unviable and you will lose your job.

During the federal court case and since, it has frequently been argued that an increase in wage cost could render many ADEs unviable. Buchanan J noted that discrimination is not an appropriate strategy to achieve business viability, stating:

‘The overall economic outcome of the use of BSWAT might assist ADEs in the (doubtless) difficult job of budgeting, but that benefit comes only at the price of imposing a comparative disadvantage on the intellectually disabled.’ [132]

As people with intellectual disability are highly vulnerable and susceptible to suggestion and acquiescence, many workers with intellectual disability have become fearful and concerned about their jobs, unaware that BSWAT is unlawful and that the Commonwealth knowingly pursued this act of discrimination.

There has been no acceptance by the Commonwealth of the Court’s decision. There has been no apology. Instead, the Commonwealth has presented itself to individuals with intellectual disability and their families as a ‘saviour’ that will ensure that their jobs will not be lost. This behaviour from the very authority that is partly responsible for the ongoing discrimination against people with intellectual disability in employment.

TEMPORARY EXEMPTION FROM THE DDA

In September 2013, the Commonwealth made an application for a temporary exemption under the DDA to address the implications of Nojin v Commonwealth. The application requested a three-year exemption to enable the Commonwealth and ADEs to continue to use BSWAT to assess and pay wages.

On 29 April 2014, the Australian Human Rights Commission (AHRC) granted the Commonwealth and ADEs using BSWAT a one-year exemption from ss15, 24, and 20 of the DDA.^[13]

The exemption was granted to allow the payment of wages based on current BSWAT assessments already conducted on condition that the Commonwealth and ADEs take all necessary and appropriate steps to transition to the SWS or an alternative tool approved by the Fair Work Commission (FWC). The Commonwealth is expected to report quarterly during the exemption period on progress of the transition.

The first quarterly report lodged by the Department of Social Services indicates that only a nominal number of employees being paid by BSWAT have moved to the SWS or a tool approved by the FWC.^[14]

FEDERAL REPRESENTATIVE COMPLAINT

In December 2013, Maurice Blackburn Lawyers launched a pro bono class action, Tyson Duval-Comrie v Commonwealth of Australia,^[15] in the Federal Court, alleging unlawful discrimination against workers with intellectual disabilities who work in ADEs.^[16]

This action alleges that the use of the Commonwealth’s BSWAT to determine pro-rata wages for people working at ADEs discriminates against people with intellectual disabilities, in contravention of the DDA.

The Maurice Blackburn class action seeks an end to the discrimination, and compensation for those workers who have lost wages as a result of the discrimination. This action is currently ongoing.

BSWAT PAYMENT SCHEME BILL 2014

On 5 June 2014, the federal government introduced the Business Services Wage Assessment Tool Payment Scheme Bill 2014 to establish a payment scheme for employees with intellectual impairment in ADEs who previously had their wages assessed under BSWAT.^[17]

The payment scheme offers a payment to employees who received wages based on BSWAT. Employees have the option to register for the Commonwealth scheme. If registered, the scheme will make an offer of half of what is owed due to loss of wages.

An accepted offer will release forever the Commonwealth and ADEs from liability due to unlawful discrimination in using BSWAT to determine an individual’s wage. If a payment is accepted a person also ceases to be a group member in relation to the federal court representative proceeding.

The Bill has passed the House of Representatives and is currently before the Senate. The Senate Committee on Community Affairs held an inquiry into the Bill. The Committee’s report was split along political party lines, with both the Australian Labor Party and the Australian Greens expressing serious concerns about the Bill.^[18]

The Joint Parliamentary Committee on Human Rights has also reviewed and reported on the BSWAT Payment Scheme Bill.^[19] The evidence provided by the Assistant Minister for Social Services, Senator Mitch Fifield, to the Joint Committee indicates that the Commonwealth does not accept that BSWAT discriminates against people with intellectual disability and still considers BSWAT to be a fair wage assessment tool. Senator Fifield wrote:

‘Assessments of wages under the BSWAT generally resulted in a reasonably accurate measure or assessment of the actual capacity of the individuals to perform the requirements of their employment and produced adequate and fair remuneration.’^[20]

Minister Fifield’s statement directly contradicts the findings of the Full Federal Court and High Court. Despite our highest court’s findings that BSWAT is discriminatory, the Commonwealth Minister responsible for this portfolio still believes that BSWAT is fair.

The Joint Committee rejected Senator Fifield’s views and concluded that the BSWAT Payment Scheme Bill is incompatible with the rights of people with intellectual disability. The Committee stated:

‘... the committee considers that a payment of 50 per cent of what an individual would have received if their wages had been assessed using only the productivity element of BSWAT is incompatible with the right to an effective remedy. Further, the committee considers that the release and indemnity provisions; the expressing of offers as payments rather than compensation; and the continued payment of wages calculated by BSWAT are incompatible with the right to an effective remedy.

... in light of the committee's analysis of the response in relation to the compatibility of the bill with a right to an effective remedy, the committee also concludes that the bill is incompatible with the right to just and favourable conditions of work.’^[21]

The Bill is yet to be voted upon in the Senate and its success or failure will depend upon how cross-bench senators vote. It is the view of national disability and advocacy organisations that the Senate should vote no, and allow the representative case in the Federal Court to independently determine fair compensation for the loss of wages due to the use of BSWAT.^[22]

UNIONS RESPOND

On 23 December 2013, United Voice and Health Services Union made an application to the Fair Work Commission to vary the Supported Employment Services Award.^[23]

The amended application seeks to (1) limit the use of BSWAT to the conditions of the Australian Human Rights Commission’s temporary exemption under the DDA, and (2) establish the SWS as the default wage assessment tool for ADEs, but permit ADEs to satisfy the Fair Work Commission that an alternate tool should be approved.

The Fair Work Commission is co-ordinating a series of conferences of interested parties across November and December 2014 which will use an interest-based problem solving process to try to achieve a solution.

$173 MILLION

On 21 August 2014, Minister Fifield announced $173 million to develop a new productivity based wage tool for use in ADEs and to assist ADEs with the additional wage costs.^[24] This announcement has two implications.

First, there is no longer any basis for a fear campaign about job losses due to the payment of fair award wages. The Commonwealth is prepared to meet any increase in cost to secure jobs. Further, the federal court class action seeks compensation from the Commonwealth, not from the ADEs. A decision to provide compensation will not impact the viability of ADEs.

Second, there is already a valid and fair productivity-based wage tool available – that is, the SWS. Fifteen ADE organisations already currently pay award wages to employees with disability based on the SWS without any direct negative impact on business viability.

It is unclear why the Commonwealth wants to develop a second productivity based wage assessment tool.

THE LEGACY OF POOR LEADERSHIP

The decisions of successive Commonwealth governments and administrations to permit ADEs to offer employment to people with intellectual disability contrary to the principles and objects of the DSA has created a substantial problem.

Thousands of people with intellectual disability and their families have become dependent on sheltered workshop employment as a major part of their daily lives. For many parents, ADEs offer a safe place during the day for their son or daughter while they pursue their own work and careers. For many people with intellectual disability, ADEs offer a place of social interaction and purpose where they can actively contribute.

Most employees have had unlawful or questionable wage assessments imposed on them. Yet ADEs have been funded by the Commonwealth to provide employment for people with disability, including the requirement to pay fair wages. The social benefits of ADEs should not be viewed as a substitute for real wages. A real job pays a real wage. Something a person with intellectual disability is entitled to, the same as any other Australian employee.

People with intellectual disability should not be asked to choose between accepting a job with discrimination or unemployment. The solution must involve adhering to basic employment rights which are non-negotiable, and which form the basis of industrial relations for all Australians. Only with this fundamental principle as a basic starting point can we as a nation build quality employment assistance and outcomes that uphold the rights and dignity of people with intellectual disability.

The principles and objectives of the DSA must be revisited. We should be developing skilled support in the disability service sector to find, place and provide ongoing support for all people with intellectual disability to work in the labour market.

If an organisation wishes to create and run a separate business for the purposes of employing people with intellectual disability, it should have to demonstrate how it will ensure fair award wages via the SWS (and thus be viable on the basis of fair wages), and also how its workforce represents a diversity of employees (and not a grouping of people with intellectual disability). These standards reflect the integration and equality objects of the DSA and comply with the principle of inclusion of the Convention on the Rights of Persons with Disabilities.^[25]

To get back on track, we urgently need good leadership. Leadership in government, in the disability services sector, and in the community to support the inclusion of people with intellectual disabilities in employment which upholds basic human rights.

We can still go to the moon and back, but we need to get busy building a new rocket that is built with the right stuff.

Paul Cain is the Director of Research & Policy at Inclusion Australia (formerly the National Council on Intellectual Disability). EMAIL: [e-mail].

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^[1] AM Clarke & ADB Clarke (Eds), Mental Deficiency: The Changing Outlook, The Free Press, Illinois, 1958; MW Gold, Marc Gold: ‘Did I Say That’? Articles and Commentary on the Try Another Way System, Research Press Company: Illinois, 1980; GT Bellamy, G O’Connor & OC Karan (Eds), Vocational Rehabilitation of Severely Handicapped Persons: Contemporary Service Strategies, University Park Press: Baltimore, 1979; P Wehman, Competitive Employment: New Horizons for Severely Disabled Individuals, Paul H Brookes Publishing: Baltimore, 1981.

^[2] Commonwealth of Australia Gazette, Principles and Objectives of the Disability Services Act 1986, No. S118, Tuesday, 9 June 1987.

^[3] Commonwealth Department of Social Services, Evaluation of Disability Employment Services 2010–2013. Final report, 2013, 110-125.

^[4] Australian Institute of Health and Welfare, Disability support services: services provided under the National Disability Agreement 2012-13, Canberra: AIHW, 2014. Data accessed from Disability services data cube for 2012-13 Disability Services National Minimum Data Set.

^[5] Australian Industrial Relations Commission: President O’Connor, Vice President McIntyre, Commissioner Gay, Melbourne, 10 October 1994, S Print L5723.

^[6] SJ Taylor, ‘Caught in the Continuum: A Critical Analysis of the Principle of the Least Restrictive Environment, JASH, 1988, 13, 1, 41-53.

^[7] Ibid.

^[8] P Wehman, see note 1 above, x.

^[9] GT Bellamy, LE Rhodes, PE Bourbeau, DM Mank, ‘Mental Retardation Services in Sheltered Workshops and Day Activity Programs: Consumer Outcomes and Policy Alternatives’. In F Rusch (Ed), Competitive employment issues and strategies, 1986, Paul H Brookes: Baltimore, pp257-72.

The Centre for International Economics, Transition to work concurrence. Implications for moderate intellectual disability, 7 March 2014.

^[10] National Quality Council at http://www.nssc.natese.gov.au/nqc_archive/aqtf.

^[11] No. M12 & No. M13 of 2013, 299-313.

^[12] Senate Estimates Brief, 2008.

^[13] https://www.humanrights.gov.au/department-social-services-dss.

^[14] https://www.humanrights.gov.au/department-social-services-dss.

^[15] Tyson Duval-Comrie v Commonwealth of Australia (VID 1367 of 2013).

^[16] http://www.mauriceblackburn.com.au/legal-services/general-law/class-actions/current-class-actions/workers-with-intellectual-disabilities-class-action/.

^[17] http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr5269%22.

^[18] http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Business_Services/Report.

^[19] Parliamentary Joint Committee on Human Rights. Ninth & Eleventh Report of the 44th Parliament, September 2014. http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Completed_inquiries.

^[20] Parliamentary Joint Committee on Human Rights, Eleventh Report of the 44th Parliament,

September 2014.

^[21] Ibid, paras 2.15, 2.16 and 2.25.

^[22]http://www.pwd.org.au/campaigns/real-wages-for-real-work.htmlhttp://www.pwd.org.au/campaigns/real-wages-for-real-work.html http://www.pwd.org.au/campaigns/real-wages-for-real-work.html.

^[23] Fair Work Commission AM2013/30 – Application to vary the Supported Employment Services Award 2010.

^[24] Senator The Hon Mitch Fifield, Assistant Minister for Social Services, Manager of Government Business in the Senate, Senator for Victoria: Media Release, 21 August 2014, $173 million to support employees in Australian Disability Enterprises.

^[25] United Nations, Thematic study on the work and employment of persons with disabilities, Report of the Office of the United Nations High Commissioner for Human Rights, 17 December 2012, p17.