There is no special law setting out and protecting the rights of workers in sheltered workshops except for licensing under the Disability Services Act. Sheltered workshops are also classified as training centres under this Act. The relevant law is the general law of employment which in Australia consists of industrial awards, the common law, and legislation.
Industrial awards are legally binding orders which set minimum standards for terms and conditions of work (for example, wages, sick pay entitlements and so on). There are currently no special awards for workers in sheltered workshops. However provision has been made in most Tasmanian awards to incorporate the Commonwealth initiative of the ‘Supported Wage System’ run through the Commonwealth Department of Family and Community Services. This allows for a person with a disability to be paid at a reduced rate following assessment of that person’s capacity for work.
The Common Law
The common law position of workers in sheltered workshops is unclear. Generally it has been assumed that they are not ‘employees’ within the common law definition (that is, someone with a contract of employment). While many people working in sheltered workshops could arguably come within the definition of ‘employee’, there has been no reported case on this point and common law protection is uncertain.
Legislation also provides benefits for workers. The most significant Acts are the Industrial Relations Act 1984 (Tas), the Workers Rehabilitation and Compensation Act 1988 (Tas), the Long Service Leave Act 1976 (Tas), and the Work Health and Safety Act 1995 (Tas). South Australia actually has an Intellectual Disability Services Award, however Tasmania does not have the same kind of legislative framework for intellectually disabled people. The only Act that makes express reference to people with disabilities is the Industrial Relations Act 1984.
Under the Industrial Relations Act, sheltered workshops are not required to meet minimum award rate requirements. Workshops that also classify as religious or charitable institutions, or training centres may fall under the Disability Services Act, and so the standards under which people with disabilities carry out work will be covered by that Act. The Act provides a scheme by which employees can receive payment of below award rates. An employer must seek authority to do so from the Tasmanian Industrial Commission. The minimum rate of pay will be established by the licence.
The Workplace Health and Safety Act defines workplaces as ‘any premises or place where an employee, contractor or self-employed person is or was employed or engaged in industry, and includes part of a workplace’. Sheltered workshops could fall under the definition of a workplace, and must comply with the same health and safety requirements as other industrial or shop premises under the Workplace Health and Safety Act. If not, the Disability Services Act provides positive standards for workshops that exclude, by implication, unsafe work standards.
The Workers Rehabilitation and Compensation Act provides for the payment of compensation to people who are under a legal disability, which includes people with intellectual disability. However, whether a person with an intellectual disability in a sheltered workshop qualifies as an employee under this Act is unclear.
The Long Service Leave Act grants all workers two months paid leave after ten years continuous service (this can sometimes be with different employers) and one month paid leave for every five years work after that. There has been no reported case deciding whether sheltered workshops are bound to provide this benefit.
The confusion about the legal position of workers in sheltered workshops means that the traditional common law protection and additional legislative benefits are, at least, unsure and possibly unavailable for these workers. Also, the variety of work done and the range of work arrangements (which vary from workshop to workshop and even more from worker to worker) makes classification in any of the usual ways difficult. A test case would resolve some of the areas of uncertainty.
In the meantime, individuals can arrange their own protective work arrangements. In the absence of award or specific legislative protection, and while the common law position remains unclear, the legal situation of each worker is determined by the negotiated terms of work. Workers in sheltered workshops should be assisted (ideally in a group but, if necessary, individually) to decide and set down the terms upon which they will work (that is, draw up ‘standard form’ contracts). Some intellectually disabled workers with assistance are capable of this type of organisation.
If it appears to a court that both parties, employer and workers, intended these arrangements to be binding, then the court will enforce the agreement, whether it is technically a contract of employment or not.
Regardless of a person with a disability’s employment status, certain rights in the workplace are no different to anywhere else. For example, sexual harassment in a sheltered workshop is unlawful.