NDS Conference

I acknowledge the traditional owners of the land on which we meet.

The Nojin and Prior decisions in the Federal Court, Full Federal Court and High Court late last year and early this are probably the most significant decisions to employees with disability in Australian Disability Enterprises - and to ADE's - since the passage of the Disability Discrimination Act more than twenty years ago. They rule that the Business Services Wage Assessment Tool used by around half of Australia's ADE's is discriminatory, and unlawful under the Disability Discrimination Act.  Today, I will summarise those decisions, and explain the exemption process under the DDA, given the lodgement by the Department of Social Services and some ADE's of an exemption application under the DDA. This speech will include some legal information which may be complex, but I will put it on the Australian Human Rights Commission website and blog it in the next couple of days.

Exemption applications are determined by the President and all members of the Human Rights Commission. As Disability Discrimination Commissioner, I am one of those members, so I am one of the decision-makers for the exemption application we are discussing today. I will therefore be very careful not to express any of my views on this decision, or to suggest what my views might be.

Let's turn first to the court decisions. Mr Prior and Mr Nojin are employees in ADE's. They claimed that the ADE's where they are employed indirectly discriminated against them on the ground of their disability by assessing their rate of pay using the Business Services Wage Assessment Tool (BSWAT). Mr Prior and Mr Nojin alleged that the Commonwealth was involved in the discrimination because it caused, induced or aided their employers to discriminate unlawfully against them by approving the BSWAT, distributing information about it, making available to ADE's free wage assessments, and conducting the assessments.

A single judge in the Federal Court found that the BSWAT did not discriminate. However, on appeal the Full Federal court declared that the ADE's and the Commonwealth unlawfully discriminated against Messrs Prior and Nojin in contravention of section 15 of the DDA, by imposing on them a requirement or condition that, in order to secure a higher wage, Messrs Prior and Nojin undergo a wage assessment by the BSWAT. A more detailed summary of the Court's reasons should be available on the Commission website in a few days.

The Commonwealth sought leave to appeal this decision to the High Court, but that leave was not granted.

Mr Prior and Mr Nojin did not seek compensation for wages lost.  They just sought the declaration which they received from the court.

This decision establishes a precedent on which others may seek to rely.  The fact that Messrs Prior and Nojin did not seek financial compensation does not preclude others from doing so.

I was not surprised by this decision.  A decade ago, when the BSWAT was being developed, staff at the Commission advised the Commonwealth and ADE's that it probably breached the DDA. That view was confirmed by the courts when Messrs Prior and Nojin tested it.

Since this court decision, complaints of discrimination have been lodged against the Department and a number of ADE's by employees, alleging discrimination through use of the BSWAT.  Their lodgement has been announced publicly by the complainants and their representatives.  These complaints are currently being investigated by the Commission.

On 6 September of this year the Commonwealth, through the Department of Social Services, lodged an application for an exemption from the provisions of the DDA applying to the payment of productivity-based wages to employees of ADE's where the BSWAT is used. This occurred during the election "care-taker" period. I understand that yesterday Minister Fifield confirmed his support for the application. The application is currently being dealt with by the Commission.

Let me now talk about the exemption process.

Section 55 of the Disability Discrimination Act gives the Commission the power to grant temporary exemptions from part of the Act. Exemptions may be applied for by a person on their own behalf, or on behalf of someone else. They can be for up to five years, and can be extended.  They can be granted with conditions, and to apply to certain circumstances or activities.

Temporary exemptions allow a person time to make changes to comply with the Disability Discrimination Act. Once granted, the matters exempted cannot be the subject of a successful complaint under the Act. There are a number of examples of exemptions which have been granted, mostly in the area of goods and services such as transport, captions, etc. They are on the Commission website. They have provided a pathway for the organisations seeking the exemptions to achieve a non-discriminatory outcome in a systemic and organised way, rather than to have individual complaints lodged against them.

The Commission has developed guidelines for the exemption process. In deciding whether to grant an exemption, the Commission will consider a number of issues.

First, whether an exemption is necessary; has discrimination occurred, do the permanent exemptions in the DDA apply, do the defences apply, and does the special measures provision apply.

Second, will the exemption progress the objects of the Disability Discrimination Act; These Objects are to eliminate, as far as possible, discrimination against people with disability in a range of areas of life including employment. To ensure, as far as possible, that people with disability get equal treatment before the law. And to promote the principle that people with disability have the same fundamental rights as the rest of the community.

Thirdly, the applicant's reasons for seeking an exemption. Advancing the Objects of the DDA will be viewed positively here.

The Commission will also consider submissions by interested parties.  Employees of ADE's, and advocacy groups on behalf of people with disability, could fall into this category, as could parents and family members.

In granting an exemption, the Commission can:

• Impose terms and conditions which might cause progress by the applicant towards compliance with the DDA Objects; and/or
• Limit the exemption to particular circumstances and activities.

The Commission can only grant the exemption for up to five years.

The Commission only grants exemptions after seeking the views of interested parties. The Commission usually publishes the application on its website with a call for submissions. This occurred several weeks ago. Submissions are open for about another four weeks.

The Commission may conduct discussions with the applicant about terms and conditions, and may make a draft of its views available for public comment before making the final decision.  When the Commission makes its final decision it must publish that decision and its reasons.  Appeals are available to the Administrative Appeals Tribunal.

So, what courses of action are open to ADE's where the BSWAT is currently being used?

Probably the simplest is to cease using the BSWAT, or other tools which test competencies as well as productivity. DDA complaints based on the Nojin and Prior decision could not be lodged about productivity-based wages paid on other tools.

Another course would be to join the Commonwealth's exemption application. However, this will not provide protection from DDA complaints until an exemption is granted, if such an exemption is granted. And it would only provide protection if the ADE complied with any exemption conditions which may be imposed.

The third course of action is to do nothing, and remain open to DDA complaints.

I hope that this explanation has clarified issues for you. As I said at the beginning, it will be put on the Commission website and blogged. I am happy to answer questions during the discussion part of this panel.

Thanks for the chance to speak with you today.