Of all the vulnerable groups in Australia today, people with intellectual disability are surely up there with the most vulnerable and susceptible to abuse and exploitation.
For the most part they exist on the fringes of society, in the periphery of our consciousness. The reasons are structural and attitudinal, deeply rooted in a history of domination and condescension. And it is at play once again.
In response to a last minute request by the Abbott Government, the Australian Human Rights Commission (AHRC) granted permission for discriminatory practices against workers with intellectual disability to continue for another four months.
These discriminatory practices come in the form of gross underpayment of wages, which can mean some people being paid as low as $0.99 per hour (just 9 per cent of the minimum wage). With the plight of people with intellectual disability generally off the public radar, this can only embolden those in power who may well equate such invisibility with minimal political blowback in the quest for petty budget savings.
It all came about in December 2012 with the decision by the full bench of the Federal Court in Nojin v Commonwealth of Australia that the Department of Social Services (DSS) had been discriminating against employees with an intellectual disability through the use of a wage determination tool known as the Business Services Wage Assessment Tool (BSWAT).
The decision was upheld by the High Court in May 2013 when it refused an application by the Commonwealth to appeal, in a hearing that lasted just 23 minutes. The case was brought by two men with intellectual disabilities, Gordon Prior and Michael Nojin.
Essentially, the BSWAT is a tool used by Australian Disability Enterprises (ADE’s, or sheltered workshops as they used to be known) to determine the level of pay for their employees by assessing both their competency and their productivity. What the court found was that the competency component of the tool discriminated against people with an intellectual disability by requiring that they answer broad questions that may not even be relevant to their particular role. For each question a person gets wrong, a percentage of their wage is taken away, regardless of its relevancy to their actual job.
But even if you answer the questions correctly, you may still have a large proportion of your pay taken away. For example, one woman answered all the questions related to occupational health and safety at her workplace correctly but still lost