Questions and Answers: BSWAT Payment Scheme

General

What is BSWAT?

The Business Services Wage Assessment Tool (BSWAT) was developed by the Australian Government for use by Australian Disability Enterprises (ADEs) to assess wages of supported employees.

BSWAT Payment Scheme

What is this scheme?

The scheme will provide an additional payment in certain circumstances to eligible supported employees with an intellectual impairment whose wages were assessed and paid using the BSWAT.

Why has this scheme been established?

The BSWAT Payment Scheme has been established by the Australian Government following the Federal Court finding in December 2012 that the BSWAT indirectly discriminated against two ADE employees with an intellectual disability.

It will provide an additional payment to eligible employees in certain circumstances and provide certainty to employees about their future employment with ADEs.

The BSWAT Payment Scheme Bill has been passed by the House of Representatives and has been referred to the Senate Community Affairs Legislation Committee for consideration. The Committee will report on 26 August 2014. The Scheme cannot commence until the Bill has passed both houses of Parliament and received Royal Assent. Information about the passage of the Bill will be posted on the DSS website as information becomes available.

You can view the Bill on the Australasian Legal Information Institute website.

How much will payments be?

The payment amount to be offered will be half of the difference between the amount the supported employee would have been paid had only the productivity element of the BSWAT had been applied and the amount the supported employee was paid, or the amount determined under the BSWAT assessment (whichever is the greater). To ensure the person retains the payment amount after tax, the amount will be increased to take account of expected tax.

If the payment amount is greater than zero, the applicant will receive a letter setting out, amongst other things, an offer to pay that amount and the time in which the applicant may accept the offer.

Do I need to talk to anyone before I accept a payment?

An applicant must seek independent financial counselling and legal advice before accepting an offer. Certificates from the financial counsellor and the legal adviser must accompany the applicant’s acceptance of the offer. Access to a legal adviser and a financial counsellor is funded through the scheme. An applicant may choose to have a nominee, advocate and/or a support person at any stage of the process.

Will the scheme pay compensation?

The scheme will not pay compensation. It will make an additional payment in certain circumstances to former and current eligible employees in relation to work they have performed in the past.

When will the scheme commence and how long will it go for?

The Scheme is unable to commence until the BSWAT Payment Scheme Bill becomes law. The BSWAT Payment Scheme Bill has been passed by the House of Representatives and has been referred to the Senate Community Affairs Legislation Committee for consideration. The Committee will report on 26 August 2014. The Scheme cannot commence until the Bill has passed both houses of Parliament and received Royal Assent. Information about the passage of the Bill will be posted on the DSS website as information becomes available.

How do I access the scheme?

Information about how to access the Scheme will be made available once the BSWAT Payment Scheme Bill becomes law.

How does this fit in with the representative proceedings being undertaken by people with disability working in ADEs who have had their wages assessed using BSWAT? (Note: on 20 December 2013, a representative proceeding was commenced in the Federal Court (see Tyson Duval-Comrie v Commonwealth of Australia (VID 1367 of 2013))

People who take part in any representative or subsequent proceedings cannot also receive a payment through the BSWAT Payments Scheme.

These types of actions may take some time to be determined by the Court or resolved—possibly years.

How does this fit with the temporary exemption application the Department of Social Services made to the Australian Human Rights Commission?

The BSWAT Payment Scheme is linked to the exemption application, but they are separate matters.

Does this mean the BSWAT will still be used?

The Australian Human Rights Commission has given an exemption from the Disability Discrimination Act for the use of the BSWAT in certain circumstances. More information is available at the Australian Human Rights Commission website.

Why aren’t other people with disability who have had their wages assessed by BSWAT eligible for the scheme?

In a recent court decision, two Australian Disability Enterprises were found to have indirectly discriminated against two supported employees with intellectual disability because the employees’ wages were assessed under the BSWAT. The court did not look at the use of the BSWAT to assess the wages of people with other types of disability.

While the Commonwealth is of the view that the decision applies only to those two individuals, the scheme has been established to provide people with intellectual disability, their families and carers with certainty that their Australian Disability Enterprise will not close because of concerns about perceived liability for discrimination. 

Because the court did not look at the BSWAT in relation to the wages of people with other types of disability, there is no perceived liability for the payment of wages assessed using the BSWAT where the person does not have an intellectual disability.

Why is the Australian Government ‘picking up the tab’ for Australian Disability Enterprises that have been paying wages based on BSWAT?

The Australian Government’s commitment is to the ongoing employment of the 20,000 workers with disability currently employed in Australian Disability Enterprises. Action has been taken to reduce the possibility of disruption to the lives of these workers due to immediate service closure and job losses.

Eligibility

Who will be eligible?

A person is eligible for the payment scheme, if the person, at any time between 1 January 2004 and 28 May 2014:

  • had an intellectual impairment;
  • had been employed in an ADE and was provided employment support by the ADE; and
  • was paid a pro-rata wage determined using the BSWAT, or was paid a training wage while awaiting an assessment under the BSWAT.

The further eligibility conditions are that:

  • the person required daily support in the workplace to maintain employment in the ADE; and
  • the person has not accepted an amount of money in settlement of, or the court has not ordered payment of an amount of money to the person in connection with, a claim made relating to the use of the BSWAT to assess the person’s wage.

All eligibility criteria will need to be met for individuals to access the scheme.

Will I need to prove that I meet these criteria to access the scheme?

Wherever possible the Department of Social Services will use information held by the Commonwealth to assess Scheme eligibility. In certain circumstances, additional information may be requested, however DSS will attempt to minimise these kinds of requests.

I have been working in an ADE and have had my wages assessed using a different tool. Am I eligible for the scheme?

No. Only people who have been paid a pro-rata wage assessed using the BSWAT (and who meet the other eligibility criteria for the scheme) will be eligible.

If I access a payment from the scheme, how will it affect my pension?

The payment to supported employees who have had their wages assessed by the BSWAT is exempt from means testing for income support payments in the social security law. Payments received under the scheme will be treated as a lump sum tax offset in arrears.

What is the role of Australian Disability Enterprises?

Australian Disability Enterprises (ADEs) have no formal role in the BSWAT Payment Scheme or in the representative proceeding. However, from time to time, ADEs may be contacted for information to assist the Department in determining payment amounts for the Scheme.

As part of the representative proceedings currently underway, relevant and or related information about how wages have been calculated or assessed by ADE’s may be ordered by the court. Where  this occurs DSS will endeavour to ensure that the relevant ADE/s are advised prior to any information being released.

Further information

How can I find out more?

People with disability, their families and carers are able to call the BSWAT information line: 1800 880 052.

Easy English Information on the Scheme is available at the BSWAT Payment Scheme.

Queries can be sent to the BSWAT inbox: bswat@dss.gov.au.

All people with disability working in ADEs will receive a letter in January, telling them about the announcement.
When more detail is available, new letters will be sent to all supported employees and the following information locations will be updated:

Electronic Newsletter: Disability eNews

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