The Business Services Wage Assessment Tool (BSWAT) Payment Scheme
The BSWAT Payment Scheme closed on 31 December 2018
The BSWAT was an assessment tool that was developed in 2004 by the Australian Government. Some Australian Disability Enterprises (ADEs) used the BSWAT to assess the wages of their supported employees. The employees’ wages were assessed based on their productivity and competency. The productivity assessment looked at how much work a person did during a period of time. The competency assessment looked at how well a person understood and did their job, or parts of their job. The results of these two assessments were then combined to give the person a score. The score was then used to work out the person’s wages.
The BSWAT Payment Scheme
BSWAT Payment Scheme (the scheme) delivered a one-off payment of $100 or more to offer compensation to eligible supported employees with intellectual impairment whose wages were assessed and paid using the BSWAT.
Payment amounts were 70 per cent of the difference between the amount the supported employee would have been paid, had the competency element not been applied, and the amount the supported employee was paid. The payment amount was increased to take account of expected tax and the rising cost of living.
The scheme was a statutory, time-limited payment scheme established by:
- The Business Services Wage Assessment Tool Payment Scheme Act 2015 (BSWAT Act), which came into effect on 30 June 2015; and
- The Business Services Wage Assessment Tool Payment Scheme Rules 2015 (BSWAT Rules) which later came into effect on 10 July 2015.
Supported employees were invited to register for the scheme by 30 April 2017, and then apply by 30 November 2017, if they met the below criteria:
- were employed at an ADE under the BSWAT between 1 January 2004 and 28 May 2014
- has been paid a pro-rata wage, that was determined using the BSWAT, or was paid a training wage while awaiting an assessment under the BSWAT
- has/had an intellectual impairment
History of the BSWAT Payment Scheme
In December 2012, the Federal Court determined that the BSWAT indirectly discriminated against two ADE employees with an intellectual impairment. In particular, the Court found that the use of the competency assessment to assess the wages of those two supported employees was discriminatory (see Nojin v Commonwealth of Australia). Following that decision, the Australian Government set up the BSWAT Payment Scheme.
Tyson Duval-Comrie v Commonwealth of Australia 2013
In 2013, Mr Tyson Duval-Comrie a supported employee with intellectual impairment working in an ADE started a class action (also known as a representative proceeding) against the Australian Government. The class action’s official name is Tyson Duval-Comrie v Commonwealth of Australia VID 1367 of 2013. The action sought compensation on behalf of all people with intellectual impairment employed in ADEs as at, or before 22 October 2013, whose wages had been assessed under BSWAT or whose wages. Supported Employees who met this criteria were automatically a classified as a ‘group member’ and had the option of ‘opting out’ of the class action (by formally requesting the Federal Court that they be excluded).
Settlement and BSWAT Payment Scheme Amendment Act 2016
In February 2016, Mr Duval-Comrie and the Government agreed to settle the class action out of court. The Government agreed to several things in the settlement, including changing the law so that people would get more money from the scheme. The Government introduced a Bill called the BSWAT Payment Scheme Amendment Bill 2016 that would, among other matters:
- increase the payment amount under the scheme from 50 per cent to 70 per cent of the difference between the wages that a supported employee was paid under the BSWAT and the wages that they would have been paid if they had been assessed using only the productivity component of the BSWAT
- automatically pay anyone who receives a payment under the current scheme a top-up to reflect the increased payments
- change the requirement for supported employees to seek legal advice before accepting a payment offer from mandatory to optional
- and extend all relevant payment scheme dates by 12 months, including dates to register and apply for the scheme, and dates to accept a payment offer.
Other changes included improving the administration of the scheme, and allowing the estates of deceased people who would have been eligible for the scheme to receive payments on their behalf.
On 18 March 2016, the BSWAT Payment Scheme Amendment Act 2016 received Royal Assent, Tyson and the Government agreed to end the class action.
Federal Court decision – December 2016
On 16 December 2016, the Federal Court of Australia held a hearing to determine whether the proposed BSWAT settlement was fair. Ahead of the hearing, the Court gave group members the opportunity to object to the settlement if they did not feel it was fair.
At the hearing, Justice North ruled that the settlement terms were fair and in the interests of group members, ending the class action.
The group members:
- needed to register and apply for the BSWAT Payment Scheme, in order to be eligible for a payment
- cannot take part in any other legal case about the BSWAT in future
- were sent a notice informing them of the decision, and what they need to do next