Blind And Autistic Worker Settles Wage Calculation Challenge

Published August 19, 2019 (last updated July 17, 2020)

A disability employment services provider has reached an undisclosed settlement with a legally-blind worker in the Federal Court after he challenged the fairness of an assessment tool used to set his wages.

The factory worker, known as Mr James was diagnosed as having high functioning autism and blindness was employed as a factory hand/assembly worker since March 2015.

Mr James made a complaint to the Commission related to the amount he received by way of wages for his employment with the employer. Mr James challenged the way his wages are calculated, in particular (but not only) the respondent’s use of a wage assessment tool called the Greenacres Competency Based Wage System Assessment Tool.

Under Greenacres, Mr James’ pay rate was restricted to a range of 15% to 20% of Grade 2 of the award rate before any assessment of his work performance occurred.

He claimed the company’s use of the tool to calculate his wages involved unlawful discrimination, as the assessment is not a reasonable measure of productivity.

The conduct alleged to constitute unlawful discrimination fell into several categories.

There were allegations that the wage assessment was undertaken by an employee of the company rather than an independent person and took over a year to complete and lacked transparency.

The worker further claimed that the employer made him sign the assessment even though he is blind and was not accompanied by the person who held his power of attorney.

The worker argued that employees are “pre-classified” under the Greenacres-based tool with “pre-determined” wages, meaning he was unable to progress to higher wage levels regardless of his productivity and therefore his wages did not reflect his move to a Level B position.

As an element of Greenacres Competency Based Wage System Assessment Tool, Mr James was subjected to an assessment of “task skills” that workers with or without disability are not subject to in determining award wages for this type and level of work in the regular labour market (open employment). He was subject to an assessment of “underpinning work skills” (independent work practice, working consistently, flexibility, quality control, workplace health and safety, and teamwork).

While these skills may be important, they are not a measure of “work value” and he argued they should not be included in a wages assessment for a worker with a disability when they are not included in the wages assessment for workers without a disability.

He claimed an alternative productivity-based tool, the Supported Wages System, would deliver a fairer wage evaluation.

This month, Mr James and his employer reached settlement relating to his claims of indirect and direct disability discrimination in employment under to s5, s6 and s15 of the Disability Discrimination Act 1992, and a contravention of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Justice Mortimer commended the parties for reaching a resolution.

“Having considered the terms of settlement, it is apparent the settlement provides some substantive benefits to [the worker], including ongoing benefits.”

The judge issued orders that the affidavit, its exhibits and the settled agreement remain confidential to the parties since it was unlikely that the settlement would have been reached without the prospect of confidentiality.

The judge ordered the employer to pay the worker’s legal costs, fixed at $10,000.

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