Commonwealth and ADEs
Legal
Background
On 29 April 2014, the Australian Human Rights Commission (Commission) granted to the Commonwealth and all Australian Disability Enterprises (ADEs) using or proposing to use the Business Services Wage Assessment Tool (BSWAT), an exemption from the operation of sections 15, 24 and 29 of the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act) (Original Exemption). The decision granting this exemption is available on the Commission website at http://www.humanrights.gov.au/department-social-services-dss. The Original Exemption expired on 29 April 2015.
On 21 April 2015 and 22 April 2015 the Commonwealth applied, on its own behalf and on behalf of all ADEs, for two temporary exemptions, the Primary Application - for a further 12 months to ensure the transition from the use of BSWAT to an alternative tool approved by the Fair Work Commission is able to continue in an orderly manner and to provide reassurance to people with disability working in ADEs and their families and carers (Primary Application). The Interim Application to cover the period between the expiration of the Original Exemption and the date the Commission makes its decision on the Primary Application (Interim Application).
Primary application
• 2015-04-21 DSS Letter - Primary Application.pdf
Revised Primary Application
A revised application was made by the Commonwealth, the National Disability Services, Multitask Human Resource Foundation Ltd, Vincent Industries Inc., Jiffy Services and Tasmanian Association of Disabled Persons Abilities Centre.
Reports from the Commonwealth
Decision
On 18 December 2015 the Commission granted a limited, conditional exemption.
On 19 December 2015, the Commission granted a limited, conditional exemption to Jiffy Services and Tasmanian Association of Disabled Persons Abilities Centre in the same terms as the decision of 18 December 2015. This was necessary due to an administrative oversight in the decision of 18 December 2015.
Request for additional information from Department of Social Services
The Commission requesteded the Department of Social Services to provide further information in support of its application on 15 May 2015, 31 July 2015 and 1 September 2015. Those requests and the responses from the Department are below.
National Disability Services also provided information in support of the application on 26 June 2015
On 1 October 2015, the NDS provided the following additional information:
Submissions received
The Commission invited submissions and received the following:
Administrative Review of Decision on Primary Application
On 18 January 2016 the Commission was served with an application for review of the decision on the Primary Application by the Administrative Appeals Tribunal. The Commission decision remains valid until such time as it is varied or set aside by the Administrative Appeals Tribunal.