People With Disability Australia Incorporated and Australian Human Rights Commission
[2018] AATA 1863
•19 June 2018
People With Disability Australia Incorporated and Australian Human Rights Commission [2018] AATA 1863 (19 June 2018)
Division GENERAL DIVISION
File Number 2016/0187
2016/1854
Re People With Disability Australia Incorporated
APPLICANT
And Australian Human Rights Commission
RESPONDENT
And AED Legal Centre
OTHER PARTY
And Commonwealth of Australia
OTHER PARTY
And National Disability Services
OTHER PARTY
And Our Voice Australia
OTHER PARTY
DECISION
Tribunal Deputy President Kenny
Senior Member PoljakDate: 19 June 2018
Place Sydney
1.The decision made by the Australian Human Rights Commission on 18 December 2015 be affirmed.
2.The decision made by the Australian Human Rights Commission on 22 March 2016 be affirmed.
…………………………………[sgd]…………
Deputy President Kenny
Senior Member PoljakCATCHWORDS
DISABILITY DISCRIMINATION – applications for review of decisions of Australian Human Rights Commission to grant exemptions under s 55 of Disability Discrimination Act 1992 (Cth) (DDA) – use of Business Services Wage Assessment Tool (BSWAT) by Australian Disability Enterprises (ADEs) to assess wages of supported employees following decision in Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1 (Nojin) – decisions under review together granted ten-month extension to earlier exemption – whether decisions under review correct and preferable on material before the Tribunal – decisions under review not inconsistent with objects of DDA – consideration of whether exemptions deprived supported employees of benefit of Nojin – consideration of settlement of representative proceedings in Duval-Comrie v Commonwealth of Australia [2016] FCA 1523 and Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth) – exemptions granted by decisions under review aligned with transitional arrangements for use of BSWAT in clause 16.4 of Supported Employment Services Award – consideration of utility of relief sought – decisions under review made on 18 December 2015 and 22 March 2016 – exemption period ceased on 29 February 2016 – exemptions granted for limited time with significant conditions attached – exemptions conducive to orderly transition away from BSWAT - exemptions provided clarity and certainty for ADEs and Commonwealth in transition period – decisions under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth)
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)CASES
Duval-Comrie v Commonwealth of Australia [2016] FCA 1523
Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1
Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
SECONDARY MATERIALS
United Nations Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006 [2008] ATS 12 (entered into force generally 3 May 2008 and in Australia 16 August 2008)
REASONS FOR DECISION
Deputy President Kenny and Senior Member Poljak
19 June 2018INTRODUCTION
The applicant, People with Disability Australia Incorporated (“PWD”), seeks review of two decisions of the Australian Human Rights Commission (“AHRC”). The first was made on 18 December 2015 (“the primary exemption decision”). The second was made on 22 March 2016 (“the interim exemption decision”). These two decisions are the decisions under review. The decisions under review together granted a ten-month extension to an earlier exemption, which had been granted to the Commonwealth and relevant Australian Disability Enterprises (“ADEs”) from the operation of ss 15, 24 and 29 of the Disability Discrimination Act 1992 (Cth) (“the DDA”) regarding the use of the Business Services Wage Assessment Tool (“BSWAT”) (“the original exemption decision”). For the reasons stated below, the Tribunal would affirm the decisions under review.
For present purposes, it suffices to observe that the DDA makes it unlawful to discriminate against a person on the ground of his or her disability in a number of areas of life, including in employment (s 15), in the provision of goods, services and facilities (s 24) and in the administration of Commonwealth laws and programs (s 29).
Both the decisions under review were made under s 55(2) of the DDA following the original exemption decision under s 55(1) of the DDA.
The Administrative Appeals Tribunal (“the Tribunal”) is able to review the decisions under review pursuant to s 56 of the DDA, which specifically provides for application to be made to the Tribunal for review of decisions made by the AHRC under s 55: see also s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The Commonwealth was made a party to these proceedings by order of the Tribunal on 28 April 2016, on the basis that the interests of the Commonwealth were affected by the decisions under review: see AAT Act, s 30(1A). Similarly, by orders of the Tribunal on 27 September 2016, 13 June 2017 and 29 November 2017, the National Disability Services (“NDS”), Our Voice Australia Inc (“Our Voice Australia”) and the AED Legal Centre (“AED”) were also made parties to the proceedings.
Pursuant to s 37(1)(a) of the AAT Act, the AHRC provided a statement dated 16 February 2016 and a statement dated 2 May 2016; and, pursuant to s 37(1)(b), lodged documents with the Tribunal (“the T-Documents”). On 4 September 2017, the Tribunal excused the AHRC from appearing at the hearing on 11 December 2017.
CIRCUMSTANCES IN WHICH THE DECISIONS WERE MADE
As will be seen, the circumstances in which the AHRC made the decisions under review have some relevance to the outcome of the present review applications.
The original exemption decision
The original exemption decision was made following an application for exemption from the operation of ss 15, 24 and 29 of the DDA on the Commonwealth and ADEs using or proposing to use the BSWAT. The application was made following the judgment of the Full Court of the Federal Court of Australia in Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1 (“Nojin”), delivered on 21 December 2012.
Each of the two appellants in Nojin was a supported employee of an ADE, with intellectual disability. The Court held that the assessment of the appellants’ wages using the BSWAT was not reasonable: see Nojin at [134]-[140] (Buchanan J) and [265] (Katzmann J), Flick J dissenting at [215]. The majority accepted that the use of the BSWAT likely resulted in a calculation of the appellants’ wages that understated the value of their actual work contribution and required them to meet criteria that non-disabled employees (against whose wages the appellants’ wages were to be measured) were not required to meet. The result was that the appellants satisfied the requirements of s 6 of the DDA (as the provision stood at the relevant time), and made out a case of indirect discrimination on the ground of disability. The conduct of their employer in using the BSWAT to assess their wages would thus amount to discrimination in employment contrary to s 15(2) of the DDA.
Katzmann J explained (at [265] and [268]):
I am persuaded that it was unreasonable to use the “all or nothing” competency testing and the question and answer method of assessment for which the BSWAT provides to determine whether the appellants’ wages should have been increased. Put another way, I am satisfied that the requirement or condition was not reasonable. In particular, it strikes me as manifestly unreasonable that the appellants’ wages be determined (even in part) by their ability to undertake tasks they would never be called upon to perform, by a method of assessment that imposes real disadvantages on them because of their intellectual disabilities and which, as Buchanan J puts it, understates the value of their actual work contributions, and when they also have to fulfil criteria that non-disabled employees against whose wages their wages are to be measured need not fulfil.
…
The BSWAT may be fair in its application to some disabled employees. Powerful evidence was given in these cases, however, that it was unfairly skewed against the intellectually disabled. If competencies must be measured independently of productivity, consistently with the objects of the Act that should be done in such a way as to eliminate as far as possible its inequitable aspects.
Her Honour also noted (at [267]) that the relevant award countenanced but did not mandate the use of the BSWAT as a wage assessment tool.
On 10 May 2013, the High Court of Australia refused the Commonwealth special leave to appeal from the judgment in Nojin: see Commonwealth of Australia and Anor v Nojin and Anor [2013] HCA Trans 101.
On 5 September 2013, the Commonwealth made its original exemption application to the AHRC pursuant to s 55(1) of the DDA, in which it sought a three-year exemption from the operation of ss 15, 24 and 29 of the DDA. Section 55(1) (in Division 5 of Part 2 of the DDA) permits the AHRC in certain circumstances to grant an exemption from the operation of a provision of Division 1 or 2 of Part 2, including ss 15, 24 and 29. An exemption, whether granted under s 55(1) or (2) (see below), may be granted subject to terms and conditions and may be expressed to apply only in specified circumstances or in relation to specified activities. The original exemption application was made in order that, for a three-year period, the ADEs might continue to use the BSWAT to assess wages for ADE employees and to pay wages to ADE employees based on assessments conducted under the BSWAT.
The AHRC invited interested parties to comment on the original exemption application, which the AHRC posted on its website. Over 100 submissions were received in response to this invitation. Although the majority of responses recognised that some time was needed to transition to a new wage assessment tool, many responses argued that three years was too long: see AHRC, Statement dated 16 February 2016 at [5]. Outright opposition to the grant of the temporary exemption was mostly on the basis that there were alternative assessment tools immediately available, citing the Supported Wage System (“SWS”) and the productivity component of the BSWAT.
On 29 April 2014, the AHRC made the original exemption decision, granting an exemption from the operation of ss 15, 24 and 29 of the DDA to the Commonwealth and all ADEs using or proposing to use the BSWAT (“the original exemption”) for 12 months, not the three years that had been sought.
The Fair Work Commission proceedings
In the meantime, two unions, the United Voice and the Health Services Union, filed a joint application in the Fair Work Commission (“the FWC”) on 16 December 2013 under s 160 of the Fair Work Act 2009 (Cth) (“the FW Act”), to vary the Supported Employment Services Award 2010 (“the SES Award”) so as to remove all wage assessment tools other than the SWS from the SES Award and to require all ADEs to begin using the SWS to assess wages of supported employees by 1 July 2014 (“the FWC proceedings”).
On 5 June 2015, the FWC made an order, by consent, varying the SES Award, by removing the BSWAT as an approved wage assessment tool under clause 14.4 and by providing transitional arrangements. These arrangements were made by the insertion of clause 14.6 into the SES Award. Clause 14.6 was in the following terms:
(a)The Business Services Wage Assessment Tool is no longer an approved wage assessment tool for the purpose of this clause. Continued use of the Business Services Wage Assessment tool under this clause is only permissible in terms of this transitional arrangement.
(b)A supported employment service that is using the Business Services Wage Assessment Tool may continue to use the Business Services Wage Assessment tool:
(i)until 31 October 2015 provided that within 1 month of the date of this variation the supported employment service indicates in writing to the Fair Work Commission its decision to transition to another approved wage assessment tool and the name of the tool it intends to transition to; and
(ii)for a further transitional period not extending past close of business, Monday 29 February 2016 granted by the Fair Work Commission following application in writing by the supported employment service.
The effect of clause 14.6(b)(ii) was to provide for a sunset date – 29 February 2016 – for the use of the BSWAT as a wage assessment tool.
The primary exemption application
On 21 April 2015, the Commonwealth applied pursuant to s 55(2) of the DDA, on its own behalf and on behalf of all ADEs, for a further exemption for 12 months, on the basis that such an exemption would facilitate the orderly transition from the use of the BSWAT to an alternative tool approved by the FWC (“the primary exemption application”). Section 55(2) of the DDA permits the AHRC in certain circumstances to grant a further exemption from the operation of a provision in respect of which an exemption has previously been granted.
The AHRC published the primary exemption application on its website on 30 April 2015, and called for submissions. The AHRC subsequently uploaded an Easy English explanation on its website. The NDS successfully applied to join the primary exemption application on behalf of its members on 21 May 2015. On 25 June 2015, the Commonwealth amended the primary exemption application to align the period of exemption it sought with the transitional arrangements for which clause 14.6 of the SES Award provided, and in particular with the sunset date (29 February 2016): see [16] above. The AHRC published the primary exemption application, as amended, on its website on 29 June 2015, and called for further submissions.
On 30 September 2015, the AHRC loaded onto its website a report by KPMG, commissioned by the NDS, entitled “Assessing the impact of increasing wage costs on Australian Disability Enterprises” and dated September 2015 (“KPMG Report”). It called for further submissions in response to the report.
The AHRC received 35 submissions in relation to the primary exemption application, although it received no submissions following the publication of the KPMG Report on the AHRC’s website.
On 18 December 2015, the AHRC made the primary exemption decision, granting an exemption, subject to conditions, for the Commonwealth and for an ADE “to which the [FWC] has granted a further transitional period pursuant to clause 14.6 of the [SES Award]”, from the operation of ss 15, 24 and 29 of the DDA:
(a)in the case of an ADE, from 18 December 2015 to the expiration of that further transitional period granted by the FWC; and
(b)in the case of the Commonwealth, from 18 December 2015 to the expiration of any further transitional period granted by the FWC to any ADE pursuant to clause 14.6 of the SES Award.
Under the DDA, it was open to the AHRC to make the primary exemption decision subject to conditions: see s 55(3)(a). The primary exemption decision attached the following conditions to the grant of exemption:
2. It is a condition of the exemption that the Commonwealth:
a.Take all necessary steps to ensure the transition from the Business Services Wage Assessment Tool (BSWAT) to the Supported Wage System, or an alternative tool approved by the Fair Work Commission, as quickly as possible.
b.Report to the Commission, on a monthly basis during the exemption period, as to:
i.The steps taken to ensure the transition from the BSWAT to the Supported Wage System, or an alternative tool approved by the Fair Work Commission, as quickly as possible.
ii.Whether any ADEs have applied to the Fair Work Commission for a further transitional period pursuant to clause 14.6(b)(ii) of the Supported Employment Services Award 2010.
iii.The status of any such application to the Fair Work Commission.
iv.The number of ADEs previously using BSWAT:
1.with all workers using an alternative tool,
2.with an alternative tool and some assessments completed,
3.with an alternative tool, but have not commenced assessments,
4.that have not identified an alternative tool,
5.that no longer provide supported employment.
v.The number of supported employees who work at an ADE that had previously used BSWAT:
1.that have been assessed under an alternative tool, and
2.that are yet to be assessed by an alternative tool where the ADE
a.has commenced assessments with an alternative tool, and
b.has NOT commenced assessments with an alternative tool.
vi.The percentage of supported employees who have transitioned to an alternative wage tool.
c.Give consideration to ensuring that no disadvantage is suffered by any supported employee whose wages may be reduced as a result of the application of the Supported Wage System or alternative tool.
3.It is a condition of the exemption that each ADE to which this exemption applies:
a.Take all necessary steps to transition from the BSWAT to the Supported Wage System, or an alternative tool approved by the Fair Work Commission, as quickly as possible.
b.Advise the Commission upon the filing of any application for a further transitional period pursuant to clause 14.6(b)(ii) of the Supported Employment Services Award 2010.
c.Advise the Commission of the outcome of any such application.
d.Provide such information to the Commonwealth to enable it to accurately and effectively report to the Commission as required under this instrument.
e.Be compliant with any order of the Fair Work Commission in relation to the use of the BSWAT.
f.Give consideration to ensuring that no disadvantage is suffered by any supported employee whose wages may be reduced as a result of the application of the Supported Wage System or alternative tool.
The interim exemption application
The interim exemption decision was made on application by the Commonwealth on 22 April 2015, for an exemption for the period between the expiry of the original exemption (30 April 2015) and the date on which the AHRC published its primary exemption decision (“the interim exemption application”). The history of the interim exemption decision is as follows.
On 30 April 2015, the AHRC granted an exemption to the Commonwealth and all ADEs using the BSWAT for a period of four months or until the AHRC published its primary exemption decision, whichever was sooner. On 5 May 2015, however, an application for review of that decision was lodged in the Tribunal. On 28 July 2015, in People with Disability Australia and Australian Human Rights Commission [2015] AATA 548, the Tribunal set aside the decision of 30 April 2015 for want of procedural fairness and remitted the matter to the AHRC for reconsideration in accordance with the reasons of the Tribunal. The AHRC published the Tribunal’s decision on its website on 7 September 2015. The AHRC called for further submissions in relation to the interim exemption application on 24 September 2015. On 5 February 2016, the AHRC joined the NDS, at its request and on behalf of its members, as an applicant to the interim exemption application. Nine submissions concerning the interim exemption application were received prior to the closing date for submissions in March 2016.
On 22 March 2016, the AHRC made the interim exemption decision to grant an exemption, subject to conditions, to the Commonwealth and to ADEs using or proposing to use the BSWAT:
(a)in the case of ADEs continuing to pay wages assessed under the BSWAT, from 30 April 2015 until 5 June 2015;
(b)in the case of ADEs continuing to pay wages assessed under the BSWAT, complying with the FWC’s order of 5 June 2015, from 6 June 2015 until 31 October 2015;
(c)in the case of ADEs that have been granted a further transitional period under clause 14.6 of the SES Award, from 1 November 2015 until 18 December 2015; and
(d)in the case of the Commonwealth, from 30 April 2015 until 18 December 2015.
The result was that the interim exemption decision bridged the gap between the expiry of the original exemption and the date on which the AHRC published its primary exemption decision.
The interim exemption decision attached conditions to the exemption that were similar to those for which the primary exemption decision provided. Points of difference included that the reporting requirements for the Commonwealth, specified in condition 2(b), were quarterly (not monthly); and, so far as ADEs were concerned, there was no requirement to report applications to, and approvals from, the FWC for further transitional periods pursuant to clause 14.6(b)(ii) of the SES Award.
Progress of transition from BSWAT
There are two further matters that should be mentioned before turning to the evidence and other material on which the parties relied. The first matter concerns the progress made by ADEs in replacing the use of BSWAT with another assessment tool for assessing supported employees’ wages.
As at 30 April 2015, when the original exemption expired, about a third of ADEs that had previously used the BSWAT to determine wage rates had completely transitioned to an alternative approved wage assessment tool. Further, as at 15 June 2015, all ADEs had chosen an alternative approved wage assessment tool for transition.
Ten ADEs successfully applied to the FWC for an extension until 29 February 2016 in order to transition to their chosen tool.
As at 29 February 2016, of 8,634 supported employees who worked at an ADE that had previously used the BSWAT, 8,519 had been assessed under a new wage assessment tool.
Compensation scheme and representative proceedings
The second matter concerns the availability of compensation for supported ADE employees whose wages were assessed using the BSWAT.
On 23 December 2013, the applicant in the matter cited as Duval-Comrie v Commonwealth of Australia [2016] FCA 1523 (“Duval-Comrie”) commenced representative proceedings in the Federal Court of Australia, for the purpose of extending the benefit of the decision in Nojin to other intellectually disabled employees whose wages had been assessed using the BSWAT.
On 5 June 2014, the government introduced the Business Services Wage Assessment Tool Payment Scheme Bill 2014, the object of which was to provide compensation for intellectually disabled employees whose wages were assessed using the BSWAT. In its original form, the Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth) (“the BSWAT Payment Scheme Act”) provided for those employees to apply for a payment of 50 per cent of the difference between the wages they were paid and the wages they would have been paid had the discriminatory elements not been used in the assessment: see Duval-Comrie at [20]. The BSWAT Payment Scheme Act took effect on 30 June 2015.
The Duval-Comrie proceedings were eventually settled, with compensation being payable under the BSWAT Payment Scheme Act. In approving the settlement in Duval-Comrie on 16 December 2016, North J stated (at [22]-[25]):
Against this background of legislative action taken to mitigate the effects of the use of BSWAT for intellectually disabled people a mediation was held in order to attempt to resolve the proceeding. All members of the group fall within the definition of persons able to make a claim under the legislative scheme. The mediation was successful. On 19 November 2015, the parties signed Heads of Agreement. The parties then executed a Deed of Settlement dated 9 February 2016.
The terms of the Deed relevant to the present application provided that the Commonwealth would use its best endeavours to pass amending legislation to increase the amount of payment under the scheme from 50 to 70 per cent of the difference between the wages paid and the wages which would have been paid if the discriminatory elements of the BSWAT had not been used, and also to extend by 12 months the period within which claimants could apply under the scheme. In return, the applicant, for himself and on behalf of group members, would release the Commonwealth from any claim associated with the use of the BSWAT to assess wages.
....
Further, the terms of the Deed provided that the Commonwealth would take steps to promote and facilitate registration in, and application to, the scheme by both group members and any other eligible persons, namely, by: corresponding with persons potentially eligible for the scheme; facilitating the display of posters advertising the scheme in ADEs; preparing easy English information about the scheme for dissemination to eligible persons and their families, carers, and nominees, ADEs, legal advisors and financial counsellors; holding information sessions at ADEs and other public venues, where assistance was provided to those attending to register and apply to the scheme; and running a scheme telephone hotline.
North J approved the settlement in the Duval-Comrie representative proceedings on the basis that the terms of the settlement were fair and in the interests of the members of the group as a whole: see Duval-Comrie at [39], [75]. Amongst other things, his Honour noted (at [71]-[73]) that:
The Department of Social Services has verified the identity of 14,590 persons who have been assessed under BSWAT. Those persons include all of the 9,735 identified group members. ... [A]llowing for the inherent difficulties in verifying the details of workers employed at over 100 ADEs, it appears that all of the 14,590 BSWAT-assessed persons have been sent a notice of the settlement.
...
Forty-two objection notices have been returned to the Court. Only a very small number of those notices objected to the settlement and stated a reason or reasons. Of that small number, some of the notices objected because the person was concerned about losing their employment, or because the person said that they did not have an intellectual disability. The very small objection rate is an indication of the generally favourable nature of the settlement.
As agreed in the Duval-Comrie settlement, the Commonwealth introduced amendments to the BSWAT Payment Scheme Act to the Parliament. On 18 March 2016, the amending legislation received the royal assent. At [28]-[32], North J described the scheme under the amended legislation in the following terms:
The scheme applies to a person with an intellectual impairment employed as a supported worker at an ADE on at least one day from 1 January 2004 until 31 January 2015 whose wage was assessed using BSWAT (s 6(2)). The scheme therefore incorporates a larger class of persons than the present proceeding. There was evidence that BSWAT had been used as a wage assessment tool for disabled workers since about 2005. It was stipulated as an approved method of wage fixing by inclusion in the Federal award related directly to work done by disabled people in the Business Services sector, the Australian Liquor, Hospitality and Miscellaneous Workers Union Supported Employment (Business Enterprises) Award 2001. On 5 June 2015, the Award was amended so that BSWAT was no longer an approved wage assessment tool under the Award. The Award was also amended to include transitional arrangements for BSWAT to be used until 29 February 2016. However, there is evidence before the Court that the Commonwealth suspended BSWAT assessments on 24 December 2012, and that no assessments have been conducted since that time. The period to which the scheme applies therefore covers the whole period over which BSWAT was actually used.
In order to apply for payment under the scheme a person must register or apply by 1 May 2017. If a person registers by that date, that person has until 30 November 2017 to apply for a payment.
The BSWAT Scheme Act provides for rules to prescribe the method of calculation of the amount of payment (s 8). Chapter 3 of the BSWAT Payment Scheme Rules 2015 (the Rules) provides the method for calculating the amount of the payment. ...
There are conditions relating to the acceptance of offers of payment under the scheme. The acceptance must be lodged before 1 January 2019. It must be accompanied by a legal advice certificate and a financial counselling certificate (s 35(3), s 36 and s 37). The Rules provide for the Commonwealth to fund the provision of the legal and financial advice (Ch 9, Pt 3 of the Rules). A person who has settled for an amount of money or is entitled to an order for the payment of an amount of money relating to the use of BSWAT is not eligible under the scheme (s 6(4)).
If an offer is accepted then by force of the Act the claimant ceases to be a group member in any representative proceeding concerning the use of BSWAT (s 9), and the claimant releases the Commonwealth and the ADE from liability arising from the use of BSWAT (s 10). Applying the provisions of the scheme does not constitute an admission of liability by the Commonwealth (s 98).
MATERIALS ON WHICH THE PARTIES RELIED
The KPMG Report
The KPMG Report was included in the T-Documents provided by the AHRC to the Tribunal under s 37(1)(b) of the AAT Act. It had been commissioned by the NDS; and the NDS had given it to the AHRC in support of the primary exemption application: see [19] above. At the hearing before the Tribunal, both the NDS and the Commonwealth relied on the KPMG Report in support of their submissions that the decisions under review were preferable.
The KPMG Report broadly concerned the impact of increased wage costs for supported employees on the ongoing viability of ADEs, with a focus on “understanding current wage rates and costs under the different wage assessment tools”: see KPMG Report, p 1.
The KPMG Report (at pp 1-2) identified the following as its key findings:
ŸADE providers operate across all states with the majority of responses received from New South Wales and Victoria
Ÿ60 per cent of providers operate in regional or rural areas and 54 per cent of providers are part of a larger organisation
ŸADE providers employ a range of supported employees, from under 25 to in excess of 250
ŸADE providers expenditure levels range from $0m - $0.5m to in excess of $10m
ŸOrganisations overall expenditure exceeded their income in 2013/14 by $3.4m and by $1.7m in 2014/15
ŸThe majority of organisations were loss making in 2014/15 (56.5 per cent) although the majority of supported employees were employed in profit making organisations (56.4 per cent)
ŸIn 2014/15, the number of profit making organisations reduced, and the number of loss making organisations increased from 2013/14.
ŸThe majority of loss making organisations were part of a larger organisation and the majority of organisations paid a corporate overhead in respect of management or other corporate costs
ŸThe majority of supported employees are reported as DMI level 4 employees (53.4 per cent) with the least number identified as DMI level 1 (7.0 per cent)
ŸThe median hours worked per week by supported employees is 20-24 hours
ŸA range of hours per work [sic] are worked across the principal wage assessment tools with 77.9 per cent of supported employees being employed by the six most utilised tools
In the event of a 20 per cent increase or by doubling supported employee wage costs:
ŸTotal supported employee wage costs would increase from $74.96m to $89.25m for a 20 per cent increase and to $146.42m in the event of doubling supported employee wages
ŸThe average loss per organisation would increase from $20.0k to $188.1k for a 20 per cent supported wage increase and to $860.7k by doubling wage costs
ŸThe number of loss making organisations would increase from 56 per cent to 74 per cent for a 20 per cent increase and up to 93 per cent in the event of a doubling of wages
ŸThe ADE providers average loss per supported employee would also increase considerably in the event of doubling supported employee wages
ŸThe number of employees in loss making organisations would increase from 41 per cent to 77 per cent for a 20 per cent increase in supported wage costs and up to 97 per cent if supported wages doubled
The KPMG Report concluded (at p 19):
It is evident that an increase in supported employee wage costs would have a significant impact on the profitability of organisations currently operating in the ADE sector. The ‘pressure test’ has identified that the average loss per organisation would increase significantly, if providers did not make any other adjustments to business operations. A rise of 20 per cent in supported employee wage costs would have a significant effect on organisational profitability and the number of employees currently working in profit making organisations would reduce from 59.0 per cent to 23.3 per cent.
In the event of supported wage doubling, the number of supported employees in loss making organisations would rise from 41.0 per cent currently, to 97.1 per cent.
There is a direct relationship between supported employee wage costs and organisational profitability and with increased wage costs being likely in the future, ADE providers will need to successfully manage this by examining aspects of their business models, including examining their costs and cost structures to improve efficiency (costs of support and supervision, and costs of production) and examining their revenue sources and pricing of the goods and services they provide with a view to maximising revenues from a range of different sources. Broader examination of the profitability and sustainability of the suite of goods and service they offer to market may also be necessary with a view to moving to higher value and more sophisticated production. Any changes resulting from this examination may have implications for employment of people with disability, including the types of jobs that may be available, and the level of employment ADEs are able to offer.
(Emphasis added)
Mr Paul Cain’s report
At the hearing before the Tribunal, the applicant tendered the report of Mr Paul Cain dated 30 August 2016. Both the applicant and AED relied on his report.
Mr Cain was the Director of Research and Strategy of Inclusion Australia, the national peak body association intended to represent the interests of people with intellectual disability and their families. Mr Cain had been involved in the creation and implementation of policies relating to employment and inclusive education for people with disabilities, especially intellectual disabilities, for around 28 years. He had been an expert witness in the trial in Nojin and was involved in aspects of the FWC proceedings, to which reference was made earlier: see [14]-[15].
At the hearing, Mr Cain’s report was admitted provisionally subject to objection by the Commonwealth. Mr Knowles, for the Commonwealth, did not dispute that Mr Cain had relevant expertise; but submitted that Mr Cain’s report was “not the result of that expertise, rather it is the result of a careful reading of and commentary upon the KPMG report”. Mr Knowles argued that Mr Cain’s report was “essentially the work that ... could be done by a non-expert, and it’s in the nature of submissions”. Mr Fogarty, for the applicant, responded that, to the degree the objection were accepted, then “it may just be a question as to weight”.
The Tribunal is not bound by the rules of evidence but may inform itself on any matter as it thinks appropriate: see AAT Act, s 33(1)(c). This does not mean the rules of evidence are irrelevant in the Tribunal setting. The Tribunal may take into account the principles underlying a rule of evidence in considering how it should inform itself, including how much weight it gives to the evidence in question: see s 33(1)(c).
In the present instance, Mr Cain’s report was relevant to issues in dispute, and his specialised knowledge of the policy issues affecting employees with intellectual disabilities, including the assessment of their wages, was not in contest. The report he made and the evidence he gave before the Tribunal was wholly or substantially based on that specialised knowledge. This was so, notwithstanding that a person without his specialised knowledge might have been able to make the same or a similar critique of the KPMG Report. In this context, we particularly note that Mr Cain was able to assist the Tribunal by pointing out the particular matters relevant to the Tribunal’s ultimate appraisal of the KPMG Report and in giving evidence relevant to matters in issue before the Tribunal. It follows, so it seems to us, that the Commonwealth’s objection was misplaced, having regard not only to s 33(1)(c) but also to the principles informing the rule of evidence expressed in s 79 of the Evidence Act 1995 (Cth).
The Commonwealth did not contend that Mr Cain had failed to comply with the Tribunal’s Guideline for persons giving expert and opinion evidence, although Mr Knowles submitted that Mr Cain’s evidence “comes at the issues from a particular angle”. In so far as this submission suggested that Mr Cain’s evidence lacked objectivity, we do not consider that suggestion was justified; and, in any event, a lack of objectivity would be relevant only to the weight the Tribunal gave his evidence.
In making his report, the applicant asked Mr Cain to express his opinion on the AHRC’s reliance on the KPMG Report. Mr Cain stated, amongst other things, that in his opinion:
(1)The survey information provided to KMPG has not been independently verified and cannot be attested by KPMG for its accuracy.
The survey data is entirely anonymous, unverified, and cannot be traced to any particular [ADE].The survey did not include any independent safeguards to ensure the data provided is true and accurate.
The survey design and implementation did not include input or representation from employees with disability, family members, advocacy groups, or national disability peak organisations.
...
The report ... is not an analysis of the change in wage costs incurred by ADEs moving from BSWAT to one of the other wage assessment tools available. It is a general survey across a broad range of ADEs about the impact of a purely hypothetical wage increase that may or may not have anything to do with the transition from BSWAT to the supported wage system or a wage assessment tool approved by the [FWC].
(Underlining in original)
(2)The AHRC misinterpreted the relevance and weight of the KPMG Report in its determination to grant a further exemption to ADEs still using BSWAT to pay the wages of employees with disability.
The KPMG Report does not separate out the profitability and viability of;
ADEs that were using the SWS, or a wage tool approved by the FWC, before the original exemption period; or
ADEs that transitioned from BSWAT to the SWS, or a wage tool approved by the FWC, during the original exemption time period; or
ADEs that were still using BSWAT at the time and were yet to transition to the SWS, or a wage tool approved by the FWC.
The KPMG Report provides no evidence of the size of any real or possible increase in wage cost for those ADEs who were using BSWAT at the time, and were yet to move to the SWS, or a wage tool approved by the FWC.
(3)The viability and profitability of ADEs has been a concern for a long time. The requirement to pay fair award based wages is not the sole determinant in the viability and profitability of a business.
(4)The KPMG Report does not provide direct evidence which supports concerns about certainty of employment and service for employees with disability, their families and carers.
The KPMG Report found that the 11,692 employees with disability included in the survey equates to an average of 138 employees with disability per organisation (page 9). This means that the 1, 239 employees with disability still being paid wages based on BSWAT accounts for approximately nine organisations – which is roughly 10% of the organisations surveyed.
There is no capacity, however, to determine from the KPMG Report, the actual current viability or profitability of these nine organisations as they are not separated out in the KPMG Report. This is a critical deficit in the KPMG Report methodology which the [AHRC] does not address in its primary and interim decisions.
(5)There is no evidence from the applicants (for exemption) of any actual instances of non-compliance by ADEs (minor or major) being determined by certification bodies when auditing the Disability Service Standards or National Standards for Disability Services (“National Standards”) in relation to the continued use of the BSWAT.
Mr Cain was subject to cross-examination by Mr Knowles, for the Commonwealth, Ms Cooper for the NDS, and Ms Walsh, for Our Voice Australia. In cross-examination, Mr Cain said, amongst other things:
(1)KPMG should have sought accounting documentation from ADEs that had not yet transitioned to the SWS or another wage assessment tool approved by the FWC, including information as to why they had not yet made the transition. Whilst accepting that it was possible that an ADE might be slower in transitioning away from the BSWAT because of financial constraints due to the costs of transition and of potentially higher wages, Mr Cain said that he had not seen any evidence to support this in the information that he had reviewed, including in the KPMG Report.
(2)An ADE’s selection of a particular wage assessment tool might depend on various factors, including the need to meet legal obligations under the DDA and the nature of the work being performed by a particular employee.
(3)In transitioning away from the BSWAT to a wage assessment tool that did not include abstract competencies like the BSWAT, the wages to be paid by an ADE would in principle increase. The SWS would more likely than not produce a higher wage outcome for intellectually disabled employees than the BSWAT although no study had been done to determine if this was so. There were a range of assessment tools that an ADE could choose besides the SWS, including Skillsmaster and Greenacres, and the impact of the other tools had not been examined as thoroughly as the SWS.
(4)Although non-accreditation would be significant because it would lead to a loss of funding, there was nothing to indicate when the exemptions were granted that any ADE was at the beginning of the process that might have led a certification body to find that an ADE was failing to comply with the National Standards.
(5)Mr Cain agreed that he had been involved in the preparation of “A joint response from national peak consumer and advocacy organisations in response to questions from the [AHRC] regarding the applications … for an exemption from the [DDA] to use the [BSWAT]” (“the Joint Response”) dated 31 January 2014. The Joint Response estimated that if ADE employees were paid according to productivity alone, the increased wage cost would be approximately $78 million per year, although Mr Cain said that that estimate was “very crude because of the limitation in the data, and ... because the employee wage data is based on bands rather than actual amounts”. The KPMG report, on the other hand, estimated that in the event of a doubling of supported employee wages, total wage costs would increase from $74.96 million to $146.42 million, which represented an addition of approximately $72 million. When asked to compare the estimates in the Joint Response and the KPMG report, Mr Cain said “there is some similarity there, largely due to coincidence”. This was because the method used for the Joint Response was “based on applying an increase based on productivity across the whole range of employees” and it was “very difficult to compare it to a hypothetical increase” used in the KPMG report. In Mr Cain’s view neither source was useful “for trying to figure out what could be the potential increase in moving from BSWAT to an approved tool or the SWS”.
(6)ADEs have a duality of focus: one is to be commercially viable and the other is a social function. This does not mean that “one trumps another”.
(7)Mr Cain accepted that the exemptions granted by the AHRC provided certainty.
In re-examination, Mr Cain noted, amongst other things, that there was a difference between the SWS and the other approved assessment tools in that the SWS “is done by an independent assessor” at no cost to the ADE; and that Commonwealth funding had been given to ADEs to offset administrative costs associated with transitioning from the BSWAT.
Mr Mark Patrick’s statement
Also at the hearing before the Tribunal, the applicant tendered the witness statement of Mr Mark Patrick dated 30 August 2016, which was admitted into evidence without objection. No party required Mr Patrick for cross-examination. We refer to his statement later in these reasons, in discussing the Tribunal’s preferable decision: see [126].
THE PARTIES’ SUBMISSIONS
The parties’ positions altered during the course of the proceeding. We outline below the submissions they pressed at the conclusion of the hearing in the Tribunal.
The applicant’s and the AED’s submissions
The applicant contended that the decisions under review should be set aside and that the primary exemption application and the interim exemption application should be dismissed. It supported this contention by written submissions in its Statement of Facts, Issues and Contentions dated 13 February 2017 (“the Applicant’s SFIC”).
At the hearing on 11 December 2017, however, counsel for the applicant, Mr Ben Fogarty, informed the Tribunal that the submissions in [5] to [8], [16] and [28] of the Applicant’s SFIC were no longer pressed. That is, the applicant no longer pressed its submissions that the decisions under review: contravene, or result in the contravention, of the SES Award, contrary to the civil penalty provision provided by s 45 of the FW Act; operated contrary to s 46PW(3) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”); and granted exemptions to entities that were not party to the primary exemption application and/or the interim exemption application: see Applicant’s SFIC at [5]-[6] and [8]. Nor did the applicant press its submission that the AHRC failed to afford procedural fairness to supported ADE employees in making the decisions under review: see Applicant’s SFIC at [7]. The applicant also abandoned submissions that the decisions under review were not preferable because their terms and conditions were unenforceable as between the Commonwealth and the ADEs; and/or because the AHRC failed properly to consider the progress and implications of the FWC proceedings: see Applicant’s SFIC at [16] and [28].
The following is a summary of the submissions that challenged the decisions under review. It is sufficient, for present purposes, to focus on the applicant’s submissions. Besides adopting the applicant’s submissions, however, AED also relied on its own Statement of Facts and Contentions dated 15 February 2017 and made submissions at the hearing, which we have considered in reaching our ultimate decision.
Why decisions not correct in law
The applicant contended that the decisions under review were not correct in law and/or not the preferable decisions because they operated contrary to the objects of the DDA, as set out in s 3. The applicant submitted that the DDA is beneficial legislation, “that has the fundamental purpose of promoting equality and providing remedies for discrimination on the basis of disability in specified areas of life, including in areas of employment, the provision of services, and the administration of Commonwealth laws and programs”. The applicant further submitted that the power to grant an exemption in s 55 of the DDA should be construed and applied narrowly.
Why decisions not preferable
Referring to the United Nations Convention on the Rights of Persons with Disabilities [2008] ATS 12 (“the Convention”), specifically art 27, the applicant also contended that the decisions under review were not the preferable decisions because “they perpetuate[d] the violation of the human rights of supported employees with disability”. The applicant noted that “[t]he Treaty Body responsible for international oversight of that Convention called upon the Australian Government to immediately cease the use of BSWAT on 21 October 2013”: see [85] below.
The applicant further submitted that the decisions under review were not preferable because:
(a)they deprived supported ADE employees whose wages have been assessed using BSWAT of the benefit of the decision in Nojin;
(b)at the time the decisions were made, the Commonwealth and the ADEs had had ample time to deal with the implications of the decision in Nojin;
(c)they had an adverse and discriminatory effect on a large number of people with disability, as set out in Duval-Comrie at [71];
(d)the Commonwealth and the ADEs had already had the benefit of the original exemption decision and any further period of exemption was unjustifiable;
(e)they were unnecessary since the Commonwealth had contended that Nojin was confined to the particular facts of the appellants in that case and that Nojin did not mean that the BSWAT was a discriminatory wage setting tool per se;
(f)the Commonwealth and the ADEs have no normative entitlement to relief from the obligations imposed upon all employers by the DDA and “[n]o other class of business enterprise has asked for or been granted a temporary exemption from the DDA … based on their asserted business viability or for any other reason”;
(g)the DDA contains an alternative and preferable basis for the assessment of whether discrimination on the basis of disability in employment may be lawfully engaged in, since it is open to a respondent to defend a complaint of disability discrimination on the basis that it would constitute an unjustifiable hardship for it to act otherwise;
(h)the decisions resulted in the AHRC and the FWC exercising jurisdiction in relation to the same subject matter and it would be preferable for the AHRC to “vacate the field” leaving this subject matter to be dealt with exclusively by the FWC, which has responsibility for industrial awards and a specific jurisdiction in relation to discrimination in the area of employment;
(i)the Commonwealth appropriated $173 million to support reforms to wage setting arrangements in the supported employment sector, which meant there was sufficient funding available to the Commonwealth and ADEs to achieve the necessary reforms and manage any liability under the DDA;
(j)there was no evidence to substantiate the assertions made by the Commonwealth and the ADEs to the effect that non-discriminatory wage setting would threaten the viability of the ADEs;
(k)there was no evidence to substantiate the assertions made by the Commonwealth and the ADEs that discriminatory wage levels in the supported employment sector were justified because of the ancillary benefits supported employees derived from their employment;
(l)the decisions were not in the public interest, but rather, the public interest was in giving the DDA its full effect;
(m)the exposure of the Commonwealth and ADEs to liability under the DDA in relation to discriminatory wage setting would have been more likely to motivate timely reform than relief from such liability; and
(n)the AHRC failed to ascertain and consider the scope and impact of the discrimination on the basis of disability in employment suffered by ADE employees whose wages were determined using the BSWAT.
With respect to (n), Mr Fogarty, for the applicant, submitted that the AHRC failed to act in accordance with s 10A(1) of the AHRC Act in making the decisions under review. Section 10A(1) provides that the AHRC has a duty to ensure its statutory functions are performed with regard for “the indivisibility and universality of human rights” and “the principle that every person is free and equal in dignity and rights”; and “efficiently and with the greatest possible benefit to the people of Australia”. In this regard, the Applicant’s SFIC stated:
[Supported ADE employees’] financial vulnerability and cost of living pressures were not given proper consideration. Further, in many cases the voices of employees themselves, as opposed to family members, were not heard in submissions put to the AHRC on the Application. Indeed, all of the submissions in the [T-Documents] from people with disability themselves ... bar one ... express opposition to the granting of exemption applications. ... These defects cannot be cured by these proceedings in the AAT. It requires a proper public consultation process.
At the same time, Mr Fogarty re-iterated that the applicant made no complaint about the procedure adopted by the AHRC.
Utility of relief sought
In answer to the Tribunal’s enquiry, the applicant contended that there was utility in the relief it sought, despite the passage of time. The applicant submitted that all supported ADE employees, including with disabilities other than intellectual disabilities, may have claims for unlawful discrimination where their wages had been assessed over the relevant exemption period using the BSWAT. The applicant further submitted that the decisions under review prevented such ADE employees from invoking the complaint processes under the DDA and the AHRC Act. The applicant submitted that, if granted the relief it sought, then those employees would be able to avail themselves of the complaint processes; and that this would be particularly useful for supported employees who had been unable to participate in the BSWAT Payment Scheme and/or the Duval-Comrie representative proceedings, both of which were confined to intellectually disabled employees. He also suggested that “there may well be gaps in even persons with an intellectual disability that couldn’t avail themselves of either of those two forms of compensation”. As already indicated, Ms Wilson, for AED, supported these contentions.
The joint submissions of the Commonwealth and the NDS
The written submissions made by the Commonwealth and the NDS are set out in their Joint Statement of Facts, Issues and Contentions dated 31 March 2017 (“the JSFIC”). Both Mr Knowles, for the Commonwealth, and Ms Cooper, for the NDS, made further submissions to the Tribunal at the hearing.
Why it was incorrect to say the decisions were not correct in law
The Commonwealth and the NDS submitted that the exemptions granted by the decisions under review were consistent with the objects set out in s 3 of the DDA.
Why it was incorrect to say the decisions were not preferable
The Commonwealth and the NDS argued that the decisions under review were not inconsistent with the recommendation by the United Nations Committee on the Rights of Persons with Disabilities (“the UN Committee”) to immediately discontinue the use of the BSWAT. This was because the decisions under review were “in harmony” with the consent order made in the FWC proceedings and the transitional arrangements provided by clause 14.6 of the SES Award and, “in this regard, implement[ed] the recommendation by the UN Committee”.
It was also submitted that the decisions under review did not deprive supported employees of the benefit of Nojin because the relevant employees obtained the benefit of that decision through the Duval-Comrie proceedings and under the BSWAT Payment Scheme Act. It was contended that the Court in Duval-Comrie did not make findings regarding the adverse and discriminatory effects of the use of BSWAT “on a large number of people with disabilities”.
Why the decisions are preferable
The Commonwealth and the NDS submitted that the ten-month extension to the original exemption provided by the two decisions under review was preferable in order to facilitate the completion of an orderly transition by all relevant ADEs to another approved wage assessment tool. It was submitted that the extension of time was necessary and appropriate. Reference was made to the reports made by the Commonwealth to the AHRC during the exemption period as to the steps taken by the ADEs to transition away from the BSWAT. It was said that the Tribunal had the benefit of recent data and should consider the decisions under review in light of the evidence that the ADEs were able to complete the transition to new wage assessment tools when given a further ten months to do so. In oral submissions to the Tribunal, Ms Cooper drew attention to the circumstances that, as at 30 April 2015, only 3 out of 110 organisations had not chosen a new wage assessment tool and that, although there were a significant number of ADE employees who remained to be assessed under a different wage assessment tool as at that date, the rate of assessment was increasing, as the quarterly reports by the Commonwealth to the AHRC indicated. She also drew attention to the fact that virtually all employees had been assessed under a new tool by the end of the exemption period.
It was contended that the decisions under review were to be considered alongside the arrangements made by the FWC for the ADEs to transition away from the BSWAT. It was submitted that “[i]t would be an untenable position if conduct expressly authorised by an order of the FWC would, potentially, expose the Commonwealth and ADEs to liability under the DDA. This is especially so in circumstances where the order amending the SES Award was made by consent”.
It was also contended that the decisions under review were preferable to ensure the viability of the relevant ADEs. This was because the decisions under review provided additional time for the ADEs to transition to a new wage assessment tool and to absorb the impact of an increase in business and wage costs. In this context, the Commonwealth and the NDS particularly relied on the KPMG Report. Ms Cooper submitted that:
Despite the criticisms by Mr Cain regarding how the data was collected, and the fact that it was self-reported and wasn’t independently assessed by KPMG, Mr Cain was not able to point in his evidence to any data in that report that appeared to be inaccurate, despite that concern about the methodology, and in fact, more than that, when taken to particular key conclusions in that report about the increase, effective and increasing wage costs, and also the general statistics about the current viability of that sector, it was clear that the data in that report was very similar to previous reports that Mr Cain in fact relied on in his own report, and also to the joint submissions of the advocacy organisations that Mr Cain was involved in preparing himself.
The fact that the Commonwealth funded the ADEs to transition from the BSWAT to another assessment tool was, it was submitted, no basis to refuse the exemptions. It was also submitted that the certainty provided by the decisions under review was preferable to the uncertainty of relying on the success of legal defences such as unjustifiable hardship.
Mr Knowles acknowledged that, in the AHRC’s reasons for the decisions under review, the AHRC did not refer much to the views of affected ADE employees. He drew attention to some of the difficulties in ascertaining the views of affected ADE employees, although he noted that the AHRC had in fact made some attempts to do so. In her submissions, Ms Cooper stated that the NDS was “very cognisant of ensuring that ADEs [were] aware of their obligations to ... consult with employees as much as possible” and agreed that this could be considered further.
No utility in the relief sought by the applicant
In oral submissions at the hearing, Mr Knowles submitted that, since the only purpose identified by the applicant for the relief it sought was “to protect or allow legacy claims ... for discrimination”, a number of the issues addressed in the evidence were less relevant than they otherwise would be. Mr Knowles identified four factors bearing on the applicant’s stated purpose for the relief it sought: (1) the length of time the exemptions had been in place; (2) the parallel FWC proceedings; (3) the BSWAT Payment Scheme and the Duval-Comrie settlement; and (4) the conditions that the decisions under review attached to the exemptions. Mr Knowles acknowledged that the exemptions meant that “people who would otherwise have an entitlement to bring a claim will not be able to bring a claim”, but submitted that the decisions under review struck “an appropriate balance”, in view of the time required to transition away from the BSWAT, the process put in place by the FWC, and the BSWAT Payment Scheme.
The separate submissions of Our Voice Australia
Ms Mary Walsh OAM represented Our Voice Australia, which described its role in the proceedings as “advocates for our disabled family members”, specifically “for those working in Australia’s Disability Enterprises”. Ms Walsh supported the submissions of the Commonwealth and the NDS. In oral submissions, Ms Walsh emphasised the importance of maintaining the viability of the ADEs. She articulated very clearly the role of the ADEs and the importance of maintaining jobs for supported ADE employees. She submitted that, on any test of reasonableness, the exemptions granted by the decisions under review were fair and reasonable. She said in oral submissions:
There were 8,699 workers who had to be transitioned away from BSWAT. We asked for three years to do it in a way that ensured the transition happened with no disadvantage to the workers, to the enterprise or the business commitments that they had already locked in. The peak bodies wanted it immediately. Those with a business industry and knowledge of the needs of our family members and how difficult it would be over a period of time to explain the processes to them supported the three-year exemption. Thanks to the well-reasoned and reasonableness of the AHRC it happened in less than half that time. It happened under the watchful eyes of the [FWC] and those of us who sat around the conciliation table actually watched all that happen and it was great to see that it was being well supervised.
Ms Walsh drew attention to the fact that at the time the 8,699 workers were to be transitioned:
There was a shortage of assessors. I live in Bundaberg. ... [I]f you’re going to send assessors to Bundaberg today, then you don’t want them to come all the way back to Brisbane and turn around and go back to Gympie or go here or go there. So there was a really genuine reason why the timeframe was needed. I supported three years. I overestimated because it only took half that time, but then also, as has already been pointed out, when you’re doing this type of major change, you do need to get the families in. You do need to get the workers in ...
CONSIDERATION
What is the task of this Tribunal?
The task of the Tribunal in reviewing the decisions under review is to make the correct or preferable decision on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 (Bowen CJ and Deane J). In doing so, subject to any statutory provision to the contrary, the Tribunal is not confined to the information before the AHRC, and should generally take into account all relevant information up to the date of the decision that it makes on the review: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, [37]-[38] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J) (with whom Crennan J agreed on this point at [117]). We reject a submission made by Mr Fogarty, for the applicant, that the Tribunal should consider the question what is the correct or preferable decision as at the time the decisions under review were made, namely 18 December 2015 and 22 March 2016 respectively.
In reviewing the decisions under review, the Tribunal may exercise the powers and discretions conferred by the AHRC Act on the AHRC: see AAT Act, s 43(1). When it makes its decision the Tribunal must either affirm the decisions under review; vary those decisions; or set them aside, either making a decision in substitution for the decision so set aside; or remitting the matter for reconsideration.
Decisions under review were not inconsistent with DDA, s 3
We reject the submission that the decisions under review were inconsistent with the objects of the DDA as stated in s 3 and should be set aside on this basis. The statement of objects in s 3 recognises that there will, from time to time, be occasions when discrimination on the ground of disability may be tolerated. These limited occasions are those for which the DDA provides.
Section 3(a) relevantly provides that it is an object of the DDA “to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i)work …; and
(ii)the provision of goods, facilities, services and land; and
(iii)existing laws; and
(iv)the administration of Commonwealth laws and programs”.
Section 3(b) contains a like qualification, providing that it is an object of the DDA to “to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community”.
Section 3 finds its expression in the substantive provisions of the DDA, including ss 55, 21B and 29A. In particular, it must be borne in mind that, by s 55, the DDA specifically conferred a discretion on the AHRC to grant an exemption and further exemption from the operation of a provision in Division 1 or 2 of Part 2 (relevantly here, ss 15, 24 and 29) upon specified terms and conditions and for a specified period “not exceeding 5 years”. As the AHRC acknowledged in its reasons for decision of 18 December 2015 and of 22 March 2016, “[t]he very nature of an exemption is to allow conduct that is, or is likely to be, unlawful discrimination”. It does not follow from the fact that the decisions under review permit conduct otherwise likely to be unlawful discrimination that those decisions are inconsistent with the objects of the DDA as set out in s 3.
For present purposes, we accept that, as the AHRC recognised in its reasons for decision of 18 December 2015, the exemptions granted “would make it lawful for the purposes of the [DDA], for an ADE to continue to assess the level of wages payable to a supported employee using the BSWAT tool in a manner that may be discriminatory”. Having regard to the decision in Nojin, this was correct. It is, however, evident from the nature of the exemptions and the conditions that were attached to them that the AHRC exercised its power under s 55 cautiously, having regard to the facts and circumstances disclosed to it. In this way, the decisions under review were made in accordance with the objects of the DDA as set out in s 3.
The facts and circumstances disclosed to the AHRC included that it had already granted the original exemption, which expired on 29 April 2015; and that the primary exemption application sought a further 12 months to facilitate the continuation of the “orderly” transition from the use of the BSWAT to an alternative tool and “to provide reassurance to people with disability working in ADEs and their families and carers”. The interim exemption application was designed to cover the period from 30 April 2015 until the AHRC made a decision on the primary exemption application, in order that there would be no lacuna in exemption coverage during the transition period contemplated by the transitional arrangements authorised by the FWC.
Other relevant circumstances so far as the AHRC was concerned included the FWC proceedings and the consent order made on 5 June 2015, especially the transitional arrangements made by the insertion of clause 14.6 into the SES Award (see [14]-[16] above); the potential impact on ADEs of increased wage costs in transitioning away from the BSWAT to another approved wage assessment tool; that the proposed Commonwealth funding package for ADEs was yet to commence; the concerns of parents and carers about “the possible closure of ADEs and/or loss of services”; and the progress made in transitioning from the use of the BSWAT to another approved wage assessment tool. In relation to the interim exemption decision, the AHRC specifically noted that “[t]he absence of an exemption for [the period sought] will create an hiatus and therefore confusion and uncertainty about the coverage of the [DDA] and the liability of the ADEs”. We recognise that the applicant and AED dispute some of these matters on review before the Tribunal, and we discuss these challenges below. For present purposes, however, it is enough to say that we reject these challenges.
It is relevant that the exemptions granted by the decisions under review were only for limited periods, and directed to a specific category of entities (ADEs using or proposing to use the BSWAT and the Commonwealth as their funding provider). The exemptions were subject to significant conditions requiring the ADEs to “take all necessary steps to transition from the BSWAT to the [SWS]” or another approved tool “as quickly as possible”, to report regularly to the Commonwealth during the exemption period, and to give consideration to “ensuring that no disadvantage is suffered” by ADE employees whose wages may be reduced as a result of the transition to a new wage assessment tool. Equivalent conditions were imposed on the Commonwealth, which was to report regularly to the AHRC.
Having regard to these matters, the AHRC concluded that it was reasonable to grant the exemptions for limited periods and subject to conditions “to reflect the terms of the [FWC’s] transitional provisions”. In the case of both decisions under review, the AHRC stated that it considered that an “exemption, on the terms granted, will provide the greatest level of certainty and clarity for all stakeholders, will allow additional time for new assessments to be conducted and will limit the discriminatory effect of the exemption”. The AHRC also stated, in each case, that the exemption was granted subject to conditions “[t]o ensure that the discriminatory impact is minimised and that a new wage-setting model is achieved as quickly as possible”.
The applicant and AED challenged these propositions on review before the Tribunal, and, as will be seen, we have rejected these challenges. We are of the view that the decisions under review, and the decision we make concerning them, are consistent with the objects set out in s 3 of the DDA.
We also note here that we refer below to the facts and circumstances that have arisen since the AHRC made its decisions, which in the Tribunal’s view make it inappropriate to set aside the decisions under review. We have reached this decision, having regard, amongst other things, to the objects of the DDA.
The recommendation of the UN Committee
We reject the submission that the decisions under review should be set aside because they perpetuated the violation of the human rights of supported employees with disability and were inconsistent with the recommendation by the UN Committee.
At paragraph 49 of the “Concluding observations on the initial report of Australia, adopted by the Committee at its tenth session (2-13 September 2013)”, the UN Committee expressed concern that supported ADE employees were “still being paid wages based on the [BSWAT]”. The UN Committee recommended that Australia “[i]mmediately discontinue the use of the [BSWAT]”; and “[e]nsure that the Supported Wage System is modified to secure correct assessment of the wages of persons in supported employment”. By its consent order of 5 June 2015, the FWC exercised its power to remove the BSWAT as an approved wage assessment tool under the SES Award, subject to the transitional arrangements in clause 14.6: see [15].
The AHRC had no power to give direct effect to the recommendation of the UN Committee. Instead, it exercised its power under s 55 of the DDA, having particular regard to the transitional arrangements made by the 5 June 2015 order. The result was that an exemption was conferred on relevant ADEs and the Commonwealth only to the extent that the FWC had given permission to an ADE to continue to use the BSWAT for the purpose of transition under the transitional arrangements in clause 14.6 of the SES Award.
Having regard to these matters, we accept that the decisions under review were in keeping with the recommendation made by the UN Committee.
The transition period provided for by clause 14.6 of the SES Award has now expired and so too have the exemptions granted by the decisions under review. If the Tribunal affirms the decisions under review, a supported employee whose wages were assessed by an ADE using the BSWAT after the sunset date of 29 February 2016 is not prevented from seeking relief under the DDA because of any continuing exemption. The submission about inconsistency with the UN Committee’s recommendation is untenable as regards the Tribunal’s decision on review.
Benefit of Nojin
We also reject the submission that the decisions under review deprived supported ADE employees whose wages have been assessed using the BSWAT of the benefit of the decision in Nojin. As stated earlier, the Full Federal Court held in Nojin that the use of the BSWAT to assess the wages of two intellectually disabled employees amounted to unlawful discrimination within the meaning of s 15 of the DDA. Nojin therefore stands for the proposition that the use of the BSWAT to assess the wages of supported employees may in certain circumstances amount to unlawful discrimination. Nojin did not hold that the use of the BSWAT to assess the wages of supported employees will always amount to unlawful discrimination. Whether or not the use of the BSWAT will contravene the DDA will depend on all the relevant circumstances, including the nature and extent of a supported employee’s disability and the applicability of any defence.
In any event, the benefit of Nojin was extended to intellectually disabled employees whose wages had been assessed using the BSWAT by the settlement of the Duval-Comrie representative proceedings and the BSWAT Payment Scheme Act. The Duval-Comrie proceedings were instituted for the very purpose of extending the benefit of the decision in Nojin to those supported employees whose situation was likely to be relevantly indistinguishable from the two successful appellants in that case, namely intellectually disabled ADE employees.
The discussion of the appellants’ situation in Nojin confirms that the people who were, as a group, most likely to receive lower wages from the application of the BSWAT on account of their disability were intellectually disabled employees. This was consistent with Mr Cain’s evidence. He acknowledged at the hearing that, although there was uncertainty about the extent to which the wage costs of ADEs would increase in a transition away from the BSWAT, the SWS would likely produce higher wages for intellectually disabled employees. As already stated, the settlement of the Duval-Comrie proceedings was effected by using the compensation scheme under the BSWAT Payment Scheme Act to compensate those employees. The Federal Court approved the settlement as fair and in the interests of the members of the group as a whole. We would conclude that the benefit of Nojin was extended to those supported ADE employees whose situation was most likely to be relevantly the same as the two successful appellants in that case, in that they were eligible for compensation under the Duval-Comrie settlement and the BSWAT Payment Scheme Act. It seems to us that these considerations are relevant to the Tribunal’s decision-making on review.
We accept the submission made by the Commonwealth and the NDS that the Court in Duval-Comrie did not make findings regarding the adverse and discriminatory effects of the use of the BSWAT “on a large number of people with disability”. On the contrary, the Court was cautious about the application of Nojin to a wider class, saying (at [63]):
Whilst Nojin stands for the proposition that use of BSWAT amounts to discrimination in certain circumstances, the defences raised in this case focus on individual or sub-group features which were not in issue in that case. Hence, if those defences are successful Nojin will have limited application.
The observations of the Court in Duval-Comrie at [71] do not include any statement that the use of the BSWAT had an adverse and discriminatory effect on all the 14, 590 persons assessed under that tool. The point that his Honour was making was simply that all of those persons had been sent a notice of settlement of the proceeding in that case.
With regard to Nojin, the applicant and AED also argued that the exemptions were unnecessary because the Commonwealth contended that Nojin did not mean that the BSWAT was a discriminatory wage setting tool per se. As already stated, we accept that Nojin stands for the proposition that the use of the BSWAT to assess the wages of supported employees may in certain circumstances amount to unlawful discrimination. Having regard to the reasons for judgment of Buchanan J and of Katzmann J in Nojin, it seems to us that as at the time of the decisions under review, it was reasonable to assume that it was highly likely that in the transition period contemplated by the order of 5 June 2015 in the FWC proceedings, there were other supported ADE employees whose circumstances were relevantly the same as the appellants in Nojin. The exemptions from the operation of ss 15, 24 and 29 of the DDA that the decisions under review granted were necessary to ensure that the transitional arrangements agreed on and ordered in the FWC proceedings were not undermined by a potential exposure to liability under the DDA. The decisions under review fostered clarity, certainty and consistency in the legal standards relevant to the permissible continued use of the BSWAT. It might reasonably be assumed that this also fostered the orderly and efficient transition by the ADEs from the BSWAT to another approved wage assessment tool.
The decisions under review were made on 18 December 2015 and 22 March 2016 respectively. The exemptions granted by these decisions ceased to apply on 29 February 2016. In the time that has since passed, it may be presumed that the Commonwealth and the ADEs to which the exemptions applied have conducted their affairs on the basis that, providing they transitioned away from the BSWAT in accordance with the transitional arrangements in clause 14.6 of the SES Award and complied with the conditions on which the exemptions were granted, they would not incur liability for use of the BSWAT in the ten-month exemption period granted by the decisions under review. We accept that, in the circumstances, it would be likely to give rise to significant difficulties – and possibly injustice – if the Tribunal were to set aside the decisions under review at this late stage. We accept that to set aside the decisions would promote uncertainty about the ADEs’ potential exposure to liability under the DDA, where the ADEs had acted in good faith, and in conformity with the exemption conditions and the transitional arrangements in clause 14.6 of the SES Award, which had been introduced into that Award by the 5 June 2015 order of the FWC, with the agreement of the parties to the FWC proceeding.
By the time the decisions under review were made there had been ample time to respond to Nojin; further exemptions beyond the original exemption were unjustifiable; the exposure of the Commonwealth and ADEs to liability under the DDA would have led to more timely reform
The figures reported by the Commonwealth to the AHRC indicate that the original exemption did not provide sufficient time for the transition away from the BSWAT and that the ten-month extension effected by the decisions under review was necessary and appropriate to allow the transition to another approved wage assessment tool. The original exemption expired on 29 April 2015. The Commonwealth’s report to the AHRC for the period 1 February 2015 to 30 April 2015 showed that, as at 30 April 2015, only three out of 110 organisations previously using the BSWAT had not identified an alternate tool. As at that date, a third of the organisations that had previously used the BSWAT to determine wage rates had completely transitioned to a new wage assessment tool. Two-thirds were still in the process of transitioning, including about a third that had completed some assessments under a new tool. These figures indicate that the process of transitioning away from the BSWAT was well under way by 30 April 2015, although the process was far from completed. Perhaps even more telling was the fact that, as at 30 April 2015, only about 58 per cent of supported employees (being 4,948 people) had been assessed under an alternate tool. It was therefore clear that the twelve-month period for transition contemplated by the original exemption decision was not enough, although much had been done to effect the transition.
By 29 February 2016, at the end of the ten-month extension granted by the decisions under review, about 99 per cent of the 8, 634 supported ADE employees had been transitioned to a new tool. Only 115 supported ADE employees had yet to be assessed under an alternative tool, and these employees were employed at only two organisations. As Ms Cooper, for the NDS, said, it seems that only two organisations “ha[d] fallen through the cracks or not been able to keep up with the progress that was being in made in the sector”.
We also reject the propositions that the decisions under review were unjustifiable and that the exposure of the Commonwealth and the ADEs to liability under the DDA would have led to more timely reform. The decisions under review can be justified not only by reference to the figures relating to the rate of transition but also on the basis that the exemptions aligned with transitional arrangements in clause 14.6 of the SES Award, introduced by the 5 June 2015 order of the FWC. As the Commonwealth and the NDS contended, it would have placed the ADEs and the Commonwealth in a virtually untenable position had the use of the BSWAT been authorised under these transitional arrangements, but any such use have given rise to a potential liability under the DDA.
We accept that, as the Commonwealth submitted, and both the KPMG Report and Mr Cain’s evidence illustrated in different ways, the transition process was not straightforward. The complexity of the transition process was, in our view, well described by Mary Walsh in her submissions on behalf of Our Voice Australia. The process involved the numerous ADEs using the BSWAT prior to Nojin adopting a different approved tool and assessing the wages of thousands of supported employees under that different tool. The ADEs were not confined to urban areas, but were spread throughout Australia. This process necessarily took time to complete. The fact that the ten-month exemption period coincided with the transitional arrangements agreed by the parties to the FWC proceedings is persuasive evidence that this was an appropriate period to allow for transitional use of the BSWAT, without the risk of potential liability under the DDA.
This conclusion is confirmed by the nature of the conditions attached to the exemptions granted by the decisions under review. These conditions were evidently designed to promote the ADE’s transition to an alternative approved wage assessment tool “as quickly as possible”: see [2.a] at [22], [26] above. A condition was attached to each exemption that required the Commonwealth and the relevant ADEs to “take all necessary steps to ensure the transition from the [BSWAT] … as quickly as possible”, and there was a further condition that the Commonwealth report, monthly in the case of the primary exemption, on the steps that had been taken and other relevant details. Compliance with this requirement was supported by the further condition that the ADEs provide information to the Commonwealth to enable it to “accurately and effectively” report to the AHRC. There were further conditions imposed on the ADEs designed to ensure that they were compliant with the FWC’s orders and procedures in relation to the use of the BSWAT. Even if the Commonwealth could not compel the ADEs to transition from the BSWAT to another wage assessment tool, as the applicant and AED at one stage contended, the Commonwealth was required to use its best endeavours to ensure all ADEs transitioned away from the BSWAT and there was no suggestion that it had failed to do so.
The place of the AHRC
We also reject the applicant’s and AED’s submission that it would be preferable for the AHRC to “vacate the field”, leaving the subject matter to be dealt with exclusively by the FWC. It may be accepted that the FWC has responsibility for industrial awards, and Part 3-1 of the FW Act includes general protection from workplace disability discrimination. At the same time, however, the AHRC has responsibility for significant aspects of the administration of the DDA, including the exercise of power under s 55 of the DDA. It was not open to the AHRC to “vacate the field”, as the applicant and AED would have it. Rather, in our view, the AHRC properly made the decisions under review, having regard to the FWC proceedings, the consent order of 5 June 2015, and the transitional arrangements in clause 14.6 of the SES Award: see [15] above. As already stated, the exemptions granted by the decisions under review aligned with transitional arrangements agreed on and ordered in the FWC proceedings. For the reasons already stated, this alignment was conducive to the process of transition, providing clarity and certainty for the ADEs and the Commonwealth in the period of transition and encouraging the orderly and efficient transition away from the BSWAT in the interests of supported ADE employees and their families.
The DDA contains an alternative and preferable basis for the assessment of whether discrimination on the basis of disability in employment may be lawfully engaged in
The applicant and AED submitted that it would be preferable to have no ten-month exemption period after the original exemption, in order to allow the determination of the lawfulness of any workplace disability discrimination to be assessed under other provisions of the DDA. Mr Fogarty, for the applicant, submitted that, in the event a claim of unlawful discrimination on the basis of disability arising from the use of the BSWAT was brought by an ADE employee against an ADE, the ADE would have the defences under the DDA available to it. Both the applicant and AED referred to the availability of the defence of unjustifiable hardship (see DDA, ss 21B, 29A).
There are evident difficulties with this submission. A complaint under the DDA, particularly if it enters the Federal Court, would involve a defending ADE (and perhaps the Commonwealth) incurring significant costs. Its personnel would necessarily spend time on the proceeding that would otherwise be spent on the ADE’s core activities. Even if ultimately successful in their defence, no ADE would be certain of that result until judgment were given.
There are, furthermore, aspects of any complaint of the kind contemplated by the applicant and AED that emphasise the uncertainty that would be likely to trouble the parties. Mr Fogarty, for the applicant, referred, for instance, to the uncertain operation of s 47 of the DDA, which, broadly speaking, renders lawful conduct done in direct compliance with an industrial instrument. Mr Fogarty submitted that, even when the consent orders were made in the FWC proceedings on 5 June 2015, s 47 was not “a whole answer”. Mr Knowles, for the Commonwealth, did not deny that there was uncertainty about whether s 47 of the DDA operated to prevent a claim of unlawful disability discrimination based on the use of the BSWAT. Mr Knowles submitted that the fact there was uncertainty about the operation of s 47 of the DDA was “the very reason why the Commonwealth says that an exemption is appropriate”, because it provided certainty.
We agree that the certainty provided by the decisions under review is, in the circumstances of the case, preferable to the uncertainty of the eventual outcome of a complaint under the DDA and the AHRC Act. The resolution of such a complaint might take some years, and in the meanwhile its outcome would be unknown and much money and time would be lost in the course of it.
Bearing in mind that the relevant stakeholders were all apparently seeking to transition away from the BSWAT, we consider that the liability of the ADEs seeking to transition in accordance with the arrangements agreed on by the parties to the FWC proceedings and authorised by the FWC should not be left in doubt, to be resolved only in complicated, expensive and lengthy litigation, especially given that the decisions under review removed that uncertainty clearly and efficiently and, in so doing, may be fairly taken to have facilitated the transition.
There was no evidence to substantiate the assertions made by the Commonwealth and the ADEs to the effect that non-discriminatory wage setting would threaten the viability of the ADEs; and the Commonwealth appropriated $173 million to support reforms to wage setting arrangements in the supported employment sector
The Commonwealth and the ADEs have no normative entitlement to relief from the obligations imposed upon all employers by the DDA; and there was no evidence to substantiate the assertions made by the Commonwealth and the ADEs that discriminatory wage levels in the supported employment sector were justified because of the ancillary benefits supported employees derived from their employment
As we have seen, the applicant and AED contended that there was no evidence that a non-discriminatory wage assessment tool would threaten the viability of the ADEs and, in any event, the Commonwealth had appropriated $173 million to support the reforms to wage setting arrangements in the supported employment sector. They relied on Mr Cain’s report and evidence to substantiate their contention that the KPMG Report did not in fact show that replacing the BSWAT with another, non-discriminatory, wage assessment tool would adversely affect the viability of the transitioning ADEs, with the corollary that they did not need additional transitioning time to absorb increased wage costs.
We accept that the transition away from the BSWAT involved significant costs for ADEs, including industrial relations costs, the transaction costs of selecting a new wage assessment tool, and assessing employees. Mr Cain acknowledged, in effect, that the SWS and other approved wage assessment tools were likely to result in higher wages for intellectually disabled employees, although he declined to put a percentage figure on the expected increase. Mr Cain also accepted that there were costs associated with the transition to new wage assessment tools, although the costs were less with respect to the SWS.
Mr Cain’s evidence, which we accept, was that the viability and profitability of ADEs has been a concern for a long time. This was consistent with the KPMG Report. We also accept that an ADE’s rate of transition away from the BSWAT could have been affected by the costs of transition and the likelihood of increased wage costs. Again, Mr Cain accepted this possibility, although he emphasised that the requirement to pay fair award-based wages was “not the sole determinant in the viability and profitability of a business”. We accept this latter proposition as well.
We accept that the KPMG Report was limited by many, if not all, of the factors to which Mr Cain referred. Further, we accept that the KPMG Report provided little evidence about the actual size of any increase in wage costs for those ADEs transitioning from the BSWAT to the SWS or another approved wage assessment tool. We also accept that the KPMG Report provided useful information about ADEs, including the percentage that was loss-making. The KPMG Report was also useful in so far as it indicated the likely or possible effects of certain wage increases on ADEs’ wage costs. As stated above, the KPMG Report found that in the event of a 20 per cent increase in wage costs, the number of loss-making organisations would increase from 56 per cent to 74 per cent, and that in the event of a doubling of wage costs, 93 per cent of organisations would become loss-making. So far as the AHRC was concerned, these matters were relevant to the decisions under review. We do not accept the argument made by the applicant and AED that these considerations ought not to have weighed in the AHRC’s assessment.
So far as this Tribunal is concerned, however, the issues are a little different to those that concerned the AHRC. The issue for this Tribunal is not whether the transition away from the BSWAT to another approved wage assessment tool will lead to significant wage increases and thereby threaten the viability of the ADEs, with the result that it was appropriate to grant a further exemption period to provide time for the ADEs to absorb increased wage costs. This is because of the changes that have taken place since the decisions under review. The effect of the FWC’s order of 5 June 2015 was that the ADEs were to transition from the BSWAT to another wage assessment tool at the latest by 29 February 2016, by which time the ADEs had either absorbed the increased costs or they had not. The issue for this Tribunal is whether it would be appropriate to deprive the ADEs of the protection from potential liability under the DDA that might have arisen as a result of their continued use of the BSWAT during the ten-month exemption period granted by the decisions under review, by setting aside those decisions. For the reasons stated below, we do not consider that this would be fair or appropriate.
As we have already noted, the evidence before the Tribunal was that there have been concerns about the viability of the ADE supported employment sector for some time. The evidence was that ADEs are generally not-for-profit organisations, which provide employment opportunities to people with disabilities. Most ADEs are loss-making on an annual basis.
There is no evidence that these concerns have been allayed, whether by Commonwealth funding or structural changes. The evidence about the Commonwealth grant of $173 million was that it had been given to offset administrative costs associated with transitioning from the BSWAT and not for any larger purpose. As we have already stated, the decisions under review were made on 18 December 2015 and 22 March 2016 respectively. In the time that has since passed, it may reasonably be assumed that the ADEs have been required to bear any costs of transitioning from the BSWAT to another approved wage assessment tool and any additional wage costs that have not been met by Commonwealth funding. In any case, it is reasonable to assume that the Commonwealth as funder and the ADEs have conducted their financial and business affairs on the basis that, if they made the transition in accordance with clause 14.6 of the SES Award and complied with the conditions on which the exemptions were granted, they would not incur liability for use of the BSWAT in the ten-month exemption period granted by the decisions under review.
The evidence before the Tribunal was that the ADEs perform a social function. Mr Cain accepted as much, and Mary Walsh, for Our Voice Australia, emphasised the importance of ADEs for supported employees and their families and carers. This was also demonstrated in the submissions made to the AHRC by the families and carers of supported ADE employees, which were in the material before us (and provided to the Tribunal under s 37(1)(b) of the AAT Act).
Bearing in mind the apparent vulnerability of the sector, the likelihood that the ADEs have had to bear at least some additional wage costs and perhaps other costs as a result of the transition away from the BSWAT, and their important social function, we consider that it would be inappropriate to set aside the decisions under review and thereby expose the ADEs and the Commonwealth to potential claims of disability discrimination that might be brought on the basis that an ADE used the BSWAT in the ten-month exemption period, in conformity with the transitional arrangements made in clause 14.6 of the SES Award. We note too that, if the decisions under review were set aside, the ADEs and the Commonwealth would not only be exposed to such claims, but also to the costs involved in defending such claims.
The AHRC failed to ascertain and consider the scope and impact of the discrimination on the basis of disability in employment to which ADE employees whose wages have been determined using the BSWAT were subject
In support of the above submission, the applicant and AED contended that the AHRC failed to pay proper attention to the financial vulnerability of the supported employees whose wages were assessed under the BSWAT, and failed to act in accordance with s 10A(1) of the AHRC Act. They said that “the voices of employees themselves, as opposed to family members, were not heard in submissions put to the AHRC”. They drew attention to the fact that all the submissions from people with disability, bar one, opposed the grant of an exemption. They submitted that the defects could not be cured by proceedings in the Tribunal but required “proper public consultation”.
We do not accept that there was a defect of the kind alleged that infected these proceedings. As will be seen, the AHRC used its website to publicise the primary exemption application and the interim exemption application and to invite submissions. In response, submissions were received, including from the family members and carers of supported employees. A small number of submissions were received from people with disability. These submissions, and others, were also before the Tribunal. In this context, Mr Fogarty, for the applicant, re-iterated, however, that the applicant made no complaint about the procedure adopted by the AHRC. AED adopted the same position as the applicant.
It was, in our opinion, to be reasonably expected that, leaving aside representative organisations and the ADEs themselves, family members and carers would be the principal people who made submissions on behalf of intellectually disabled employees. This was the group that were reasonably seen as principally affected by the decision in Nojin. As Mary Walsh stated “[i]f only our disabled family members could exercise their rights by doing submissions themselves, God help us, none of us would be here”. Intellectually disabled employees, depending on the extent of disability, are vulnerable because their disability can prevent or seriously impede their capacity to advocate on their own behalf. In most cases, they rely on their families and carers to advocate for them. We would not infer from the submissions that the AHRC received, or from anything in the decisions under review, that the AHRC did not take into account the position of the supported employees, particularly the financial vulnerability of the supported employees whose wages were assessed under the BSWAT. It may be borne in mind that many of these submissions not only expressed a concern about differential wages rates for people with disability but a concern that people with disability continue to have work opportunities. We can discern no basis for the contention that the AHRC failed to act in accordance with s 10A(1) of the AHRC Act.
On the contrary, we consider that the position of the supported employees, including their financial position, was an important part of the decisions under review. That a particular concern was the position of the individual employee is reflected in the conditions imposed on the Commonwealth and the relevant ADEs that consideration be given to ensuring that “no disadvantage is suffered” by any supported employee “whose wages may be reduced as a result of the application of the Supported Wage System or alternative tool”.
In rejecting the applicant’s and AED’s submissions in this regard, we do not intend to diminish the importance of involving disabled employees, including intellectually disabled employees, in decisions affecting their employment. We accept that, as Ms Cooper stated, the NDS was “very cognisant of ensuring that ADEs [were] aware of their obligations to ... consult with employees as much as possible”. It may be accepted that thought must always be given as to how this consultation is best done. In the present case, however, no-one suggested that the process used by the AHRC was deficient in any particular aspect; and the Tribunal has not only had the benefit of the submissions made to the AHRC, it has also had the benefit of the joined parties’ submissions, including of Our Voice Australia, which, through Mary Walsh, emphasised the need to place the ADEs’ supported employees at the centre of the decision-making about their employment.
Public interest?
The applicant and AED made a further submission that the decisions under review were not in the public interest. For the reasons already explored above, we reject that submission, assuming that this is a relevant criterion in the present context.
What is the correct or preferable decision for the Tribunal to make?
The decision to be made by the Tribunal must be made having regard to the facts and circumstances disclosed in the evidence now before it.
As we have seen, when the decisions under review were made, the exemptions they granted were aligned with the transitional arrangements agreed on and ordered in the FWC proceedings on 5 June 2015. We accept, for the reasons we have stated, that the decisions under review were conducive to the orderly transition away from the BSWAT to an alternative wage assessment tool. They provided clarity and certainty about any potential liability under the DDA arising from the use of the BSWAT, thereby conserving the ADEs’ resources, in the interests of the supported employees.
The ten-month exemption period granted by the decisions under review ceased on 29 February 2016, on the same day that any permissible use of the BSWAT ceased under clause 14.6(b)(ii) of the SES Award. The evidence to which we have earlier referred showed that the ADEs’ process of transition was virtually complete by then. In these circumstances the Tribunal questioned the utility of the relief the applicant and AED sought. They responded that there was utility in setting aside the decisions under review because it would then be open to supported employees whose wages were assessed using the BSWAT in the ten-month exemption period to invoke the complaint processes under the DDA and the AHRC Act.
We accept that there may be supported employees who might benefit from the setting aside of the decisions under review. We note, however, that there was no distinct evidence that anyone, let alone a number of people, would be likely to be advantaged by the setting aside of these decisions. Nojin did not discuss the use of the BSWAT to assess the wages of supported employees who were not intellectually disabled. There was no evidence before the Tribunal as to whether a claim of unlawful discrimination by non-intellectually-disabled employees, based on the use of the BSWAT, would be tenable.
There was only very slight evidence that any supported employee without an intellectual disability had in fact sought to make any relevant complaint. Mr Patrick’s witness statement of 30 August 2016 indicated that, between 1 January 2013 and 1 May 2016, the AHRC received only one potentially relevant complaint from a supported ADE employee with vision impairment. The complaint alleged discrimination on the ground of vision disability on the basis that “his employer has no mechanism in place for reviewing his wage” after he had improved his qualifications. The complainant referred to the Duval-Comrie settlement involving “a one-off payment to employees of ADEs who have intellectual disability” and noted that he had received no such offer. There was no evidence about the outcome of this complaint, and the Tribunal is unable to draw any relevant inference from this slight material.
As we have already foreshadowed, there are plainly a number of significant considerations that weigh against the setting aside of the decisions under review. First, the exemptions granted by the decisions under review have been in place since 18 December 2015 and 22 March 2016, during which time the ADEs and the Commonwealth can be taken to have conducted their affairs on the basis that they would not incur any liability under the DDA for using the BSWAT in the ten-month exemption period, providing they complied with the conditions on which the exemptions were granted and acted in accordance with the transitional arrangements in clause 14.6 of the SES Award. We consider that, in the circumstances, it would be likely to give rise to significant difficulties, and likely unfairness, if the Tribunal were now to set aside the decisions under review: see [95] above. As already stated, to set aside the decisions under review would introduce uncertainty about potential liability under the DDA where none had previously existed.
As to an ADE’s exposure to unexpected liabilities, Mr Fogarty, for the applicant, submitted that there would be no great prejudice to the ADEs if the decisions under review were set aside, because, in the event a complaint of unlawful discrimination arising from the use of the BSWAT were brought by an ADE employee, the ADE would have the defences under the DDA available to it and, in any event, the passage of time would likely tell against the complainant rather than the ADE.
As already stated, the resolution of any complaint under the DDA and AHRC Act could very well involve complicated, expensive and lengthy proceedings. We consider that this would be a substantial injury to an ADE, particularly having regard to the apparent vulnerability of the ADE supported employment sector. We have already referred to the long-standing concerns about the viability of the ADEs, to the possibility that the transition away from the BSWAT may have involved increased costs, and to the important social function of the ADEs. Bearing in mind that all, or virtually all, the relevant ADEs were apparently seeking to transition away from the BSWAT during the exemption period, we do not consider that in these circumstances the liability of the ADEs should be left in doubt in the absence of a very strong countervailing factor. The long-standing certainty provided by the decisions under review is, in the circumstances of the case, preferable to the uncertainty that would be occasioned by setting aside the decisions, even though this may mean that a person, as yet unascertained, with a tenable complaint of unlawful discrimination in the exemption period cannot bring it. We do not consider this latter consideration to be a sufficiently strong countervailing factor in the circumstances of the case.
Secondly, to set aside the decisions under review would fail to take account of the history, in which the transitioning timetable was agreed by the relevant parties in the FWC proceeding and approved by the FWC. As we have said, the FWC’s order of 5 June 2015, introducing clause 14.6 into the SES Award, contemplated that the use of the BSWAT would remain permissible under the SES Award until 29 February 2016, providing the relevant ADEs complied with clause 14.6. It would have placed the ADEs and the Commonwealth in a virtually untenable position had the use of the BSWAT been authorised under these arrangements, but at the same time such use have given rise to potential liability under the DDA. The decisions under review avoided this outcome. They also recognised that the FWC was the proper body to determine an appropriate timetable in which the transition away from the BSWAT was to occur, and to manage that timetable. The exemptions were designed to fit within the timetable agreed in the FWC.
Thirdly, as we have seen, the exemptions granted by the decisions under review were limited exemptions designed to facilitate the transition by ADEs using the BSWAT to another approved wage assessment tool. The exemptions were granted to relevant ADEs and the Commonwealth as funder for a limited time only. The conditions attached to the exemptions were appropriately rigorous and designed to promote the ADE’s transition to an approved wage assessment tool other than the BSWAT “as quickly as possible”. There was no suggestion that the Commonwealth or relevant ADEs had failed to comply with these conditions; and the evidence concerning the rate of transition indicated that the decisions under review served their intended purpose.
Fourthly, as noted earlier, the benefit of Nojin was extended to those supported ADE employees whose situation was most likely to be relevantly the same as the two successful appellants in Nojin, as reflected in their eligibility for compensation under the Duval-Comrie settlement and the BSWAT Payment Scheme Act. Whilst it is correct to say that the decisions under review prevented supported employees whose wages were assessed under the BSWAT in the exemption period from invoking the complaints processes under the DDA and AHRC Act, the extent of any consequential harm is significantly ameliorated by the Duval-Comrie settlement and the BSWAT Payment Scheme Act.
CONCLUSION
As we have noted, the issues raised in this proceeding have changed over time. It has not been necessary to address some issues addressed by the AHRC, such as the likelihood of loss of funding through loss of certification. Some issues were specifically abandoned by the applicant and AED, while other issues changed in nature and focus, particularly issues as to the financial viability of the ADEs. This has made these reasons longer than we would wish: we have, however, sought to set out and address the case as the parties made it.
As the AHRC earlier recognised, there is no perfect solution in a case such as this. We are of the clear view, however, for the reasons stated, that the decisions under review should be affirmed.
135 I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Kenny and Senior Member Poljak
……………[sgd]………............................
Associate
Dated: 19 June 2018
Date of Hearing
11 December 2017
Date of Decision
19 June 2018
Counsel for the Applicant
Mr B Fogarty
Solicitor for the Applicant
Mr M Patrick
Australian Centre for Disability LawSolicitor for the Respondent
The Respondent was excused from appearing at the hearing
Solicitor for the Other Party
AED Legal CentreMs K Wilson
AED Legal CentreCounsel for the Other Party Commonwealth of Australia
Mr P Knowles
Solicitor for the Other Party Commonwealth of Australia
Ms H Dejean
Australian Government SolicitorSolicitor for the Other Party
National Disability ServicesMs A Cooper
AshurstOther Party
Our Voice AustraliaMs M Walsh OAM
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