Nojin v Commonwealth of Australia [2011] FCA 1066

Nojin v Commonwealth of Australia [2011] FCA 1066

The applicants did not establish unlawful discrimination. The only requirement or condition imposed was that their wage levels be determined by assessment using the BSWAT, and each applicant was able to comply with that requirement by undergoing the assessment. The competency, question-and-answer and all-or-nothing features of BSWAT were not separate requirements or conditions with which the applicants failed or were unable to comply for the purposes of s 6. In any event, having regard to the development, endorsement and purpose of BSWAT, and the legitimacy of assessing competency as part of wage value in ADE employment, the alleged requirements or conditions were not shown to be...

Jurisdiction
Australia
Judgment Date
16 September 2011
Procedural Posture
Disability Discrimination Proceedings Concerning Assessment of Wage Rates for Employees in Australian Disability Enterprises / Judgment After Hearing
Outcome
Applications dismissed; question of costs reserved.
Legal Topics
['disability Discrimination' 'indirect Discrimination' 'australian Disability Enterprises' 'business Services Wage Assessment Tool' 'supported Wage System' 'wage Assessment' 'reasonableness of Requirement or Condition']
['human Rights' 'discrimination Law' 'employment Law'] ['disability Discrimination' 'indirect Discrimination' 'australian Disability Enterprises' 'business Services Wage Assessment Tool' 'supported Wage System' 'wage Assessment' 'reasonableness of Requirement or Condition']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Disability Discrimination Proceedings Concerning Assessment of Wage Rates for Employees in Australian Disability Enterprises / Judgment After Hearing

Legal Issues

  1. 1 ['Whether use of the Business Services Wage Assessment Tool involved requiring the applicants to comply with requirements or conditions within s 6 of the Disability Discrimination Act 1992 (Cth).' "Whether any such requirements or conditions were ones with which a substantially higher proportion of persons without the applicants' disabilities complied or were able to comply, and with which the applicants did not or could not comply." 'Whether any such requirements or conditions were not reasonable having regard to the circumstances of each case.' 'Whether the Commonwealth caused, induced or aided unlawful discrimination by approving, promoting and conducting BSWAT assessments.' 'Whether s 45 of the Disability Discrimination Act 1992 (Cth) would make the impugned acts not unlawful if discrimination were otherwise established.']

Ratio Decidendi

The applicants did not establish unlawful discrimination. The only requirement or condition imposed was that their wage levels be determined by assessment using the BSWAT, and each applicant was able to comply with that requirement by undergoing the assessment. The competency, question-and-answer and all-or-nothing features of BSWAT were not separate requirements or conditions with which the applicants failed or were unable to comply for the purposes of s 6. In any event, having regard to the development, endorsement and purpose of BSWAT, and the legitimacy of assessing competency as part of wage value in ADE employment, the alleged requirements or conditions were not shown to be...

Court Disposition

Applications dismissed; question of costs reserved.

Orders

  • ['In proceeding VID 796 of 2008, the application be dismissed.' 'In proceeding VID 796 of 2008, the question of costs be reserved.' 'In proceeding VID 796 of 2008, on or before 30 September 2011, the respondents file and serve written submissions concerning costs.' 'In proceeding VID 796 of 2008, if the respondents...