Australia’s Disability Discrimination law is an ass. Here is why.
Prior and Nojin are disabled men who were employed by one of Australia’s many Disability Employment Enterprises known as Australian Disability Enterprises. (ADE) They took their employer to court. They argued that under the DDA paying them less than $4 was discriminatory. From what I can gather they began their case in 2011 and their arguments were rejected on a number of occasions. They appealed and it was not until January 2013 that the court ruled in their favour.
The court ruled that the notorious Business Service Wages Assessment Tool (BSWAT) discriminated against people with a disability. The court ruled that workers with a disability should receive equal pay for equal work. Just like women!
Now it has been a long drawn out battle, but finally at the tail end of 2015, entering into 2016, an agreement has been reached to pay workers with a disability a fair wage. On top of that the agreement states that workers will receive 70% reimbursement by means of back-pay. The ADEs wont pay though because the Government will put forward the money. One would hope that from here on ADEs will pay people with a disability a fair wage. This remains to be seen.
Four years on from the original ruling, workers with a disability at ADEs had a win. This was not before the whole matter was dragged through the courts and at great expense and heartache. Where in all this were the rights of people with a disability protected? Well, eventually it seems the they were. That said, we are still no closer to having a commitment to equal pay for equal work. From my point of view workers at ADEs are still open to being discriminated against by ADEs. It should be simple shouldn’t it. Like fair pay for women it should be fair pay for people with a disability. Is it any wonder 45% of people with a disability live in poverty.
Recently I have had my own experience of the DDA. I made a complaint for disability discrimination. I was very fortunate to actually reach conciliation. You see when people with a disability make a complaint for disability discrimination the offending party is under no obligation to come to the table. They can say no. In such cases the only other avenue to have the matter heard is the courts, and at great expense.
But I got lucky and the offending party came to the table. Now I have to be careful here. You see conciliation is strictly confidential. What happens in the room stays in the room. So I cant say who or what the offending organisation do, did or agreed to do. So let’s just call this a fictional case based on a true story.
What it came down to was that I owed money. The reason I owed this money was due to some exceptional circumstances. In my efforts to receive a fair hearing from this organisation I encountered barrier after barrier. Let us just say the organisations communication systems were less than desirable for people who had different communication needs.
Over a period of time I tried to deal with this system. I requested and was refused reasonable adjustments by way of an Auslan interpreter. Consequently the matters escalated to court. The money owed was in the thousands. It need not have been so if communication had been smooth and if systems had been designed with the needs of various communication scenarios in mind. Also, if an Auslan interpreter had been provided much confusion could have been avoided.
After dealing with them for several months and getting nowhere I made my DDA complaint. Conciliation occurred. The organisation admitted that its systems caused difficulties. They admitted that as the result of my case they had already implemented a number of changes to make that system better. They were committed to continual improvement. As for the money owed they refused to budge on that.
They agreed to a number of other strategies too. For example they agreed to make their workforce more responsive to the needs of people with different communication needs through training. It all seemed positive. They were admitting liability for some of the problems at least and they were making positive change to address the deficiencies.
I asked if they could confirm this in writing for my court case. I felt that this would be looked on favourably by the courts. They refused. I asked if I could at least mention what was agreed in court to bolster my defense. They refused that too. You see, under the law all matters discussed in conciliation are confidential. They cannot be disclosed, not even in a court of law in ones defense.
So here we have a scenario that an organisation has admitted its systems caused problems that led to matters becoming worse. We have them admitting that as a result of my case they had already implemented some positive change. We have them committing to continued improvements including skilling staff to deal with the needs of people with different communication needs.
All good except that I cannot use any of this in court in my defense. I cannot disclose to the judge the outcome. So I am left lumbered with the payments and no means to defend myself. I am sorry but is not the whole idea of disability discrimination law to protect people with a disability? It seems not. I am confused.
As Mr Bumble said in Oliver Twist, “If the law supposes that, then the law is an ass an idiot.”
Merry Xmas everyone!