Questions and Answers: Business Services Wage Assessment Tool (BSWAT) and Australian Disability Enterprises (ADEs)

This web page includes information about the future of the Business Services Wage Assessment Tool and how Australian Disability Enterprises and their employees may be affected. For information about the BSWAT Payment Scheme, see Questions and Answers: BSWAT Payment Scheme.

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.

Where do I take my concerns about wages in Australian Disability Enterprises?

In the first instance, if you feel comfortable, it is appropriate to discuss your concerns with the relevant ADE. All ADEs funded by the Government must be able to explain to supported employees, and if appropriate, their guardians and advocates, how wages and conditions are determined and the consequences of this. The Complaints Resolution and Referral Service (CRRS) may be able to assist you. The CRRS exists to discuss any problem you might have regarding a disability employment service and will be able to talk with you about how best to approach an ADE about wage matters. CRRS can be contacted on 1800 880 052. For further information please go to the CRRS website.

You may also wish to contact the Fair Work Ombudsman. The Fair Work Ombudsman’s services are free to all workers and employers in Australia. Please call them on 13 13 94 for the cost of a local call, or send an email to the Fair Work Ombudsman. For further information please visit the Fair Work Ombudsman website.

If you would like some personal assistance, you could also consider contacting a National Disability Advocacy Program (NDAP) agency. NDAP agencies offer free individual support to any person with disability and also offer information to people with disability about how to advocate for themselves. A full list of NDAP agencies can be found on the Department of Social Services website.

How does income from my employment at an ADE affect my Disability Support Pension (DSP)?

Pension recipients who work are always better off in terms of their total income than when they are not working.

A DSP recipient can receive an amount of income before their pension starts to be reduced. This amount is called the income test free area. From 20 March 2015, the DSP income tested free area is $162 a fortnight ($4,212.00 a year).

Single Disability Support Pension recipients

For each dollar of income over the income test free area, the single pension is reduced by 50 cents. This is called the taper rate. You can earn up to $1,909.80 a fortnight ($49,654.80 a year) if you are a single DSP recipient before your payment cuts off. As long as you receive $1 of DSP, you still keep your Pensioner Concession Card.

Couple Disability Support Pension recipients

For each dollar of income over the income test free area, the couple’s combined pensions are reduced by 50 cents. This is called the taper rate. This means that for a pensioner couple, their individual pensions are reduced by 25 cents a fortnight for each dollar of income that the couple has over the income test free area. A part-pension is currently payable up to an income of $2,922.80 a fortnight ($77,812.80 a year) for pensioner couples combined, and they keep their Pensioner Concession Cards if their combined income is under this amount.

NB People who are permanently blind receive DSP free of any income or assets testing arrangements. For further information visit the Department of Human Services website.

Why did the Government lodge an application for an exemption under Section 55 of the Disability Discrimination Act 1992 (Cth) with the Australian Human Rights Commission (AHRC)?

In September 2013, the Department lodged an exemption from the Disability Discrimination Act 1992 (the DDA Act) with the Australian Human Rights Commission (AHRC) to allow ADEs to transition from the BSWAT to alternate approved tools.

On 29 April 2014, the AHRC granted an exemption to allow the payment of wages to ADE employees, based on assessments already conducted with the BSWAT, for a period of 12 months, subject to certain conditions.

In April 2015 the Department applied for a further 12-month exemption from the DDA and an interim exemption while the AHRC considers the primary application.

On 30 June 2015, the AHRC provided an interim exemption from the DDA for four months, until 29 August 2015, pending the outcome of the 12-month primary application.

People with Disability Australia (PWDA) lodged an appeal in the Administrative Appeals Tribunal (AAT) against the AHRC’s 30 April 2015 decision to grant an interim four-month exemption. The AAT decision was handed down on 28 July 2015. The exemption decision was set aside and remitted to the AHRC for reconsideration.

On 25 June 2015, the Department wrote to the AHRC seeking to amend its further exemption to align with Fair Work Commission consent orders that varied the Supported Employment Services Award 2010 (the Award).

Unions and peak bodies representing ADEs agreed to a timetable which would see the BSWAT removed from the Award by 31 October 2015. The variation to the Award allows for a further transitional period for ADEs using the BSWAT until 29 February 2016 on application by the ADE to the Fair Work Commission (FWC).

On 18 December 2015, the AHRC made its primary exemption decision – 18 December 2015 to 29 February 2016 for the Commonwealth, National Disability Services (NDS) and four non-NDS member ADEs.

On 22 March 2016, the AHRC remade its decision on the interim application for an exemption. The exemption provided limited coverage from 30 April 2015 to 18 December 2015 to the Commonwealth and ADEs who were member of NDS, if certain circumstances were met.

Information related to all the temporary exemptions from the DDA for the use of BSWAT can be found on the AHRC website.

Does the BSWAT decision (Nojin and Prior v Commonwealth) have implications for quality assurance certification of ADEs?

All ADEs funded by the Government are required to comply with Services Standards in the delivery of supported employment to people with disability. The Joint Accreditation System of Australia and New Zealand (JAS-ANZ) amended its Disability Employment and Enterprise Scheme (DEES) in light of the outcomes from the BSWAT court case. The full DEES requirements including the amendment can be found on the JAS-ANZ website.

The amendments will increase the Quality Assurance risks for some organisations and may result in an observation or a non-conformance being recorded.

Is the future of ADEs secure?

The Government values the important role of ADEs and is committed to the ongoing supported employment of 20,000 workers with moderate to severe disability in the around 190 ADEs across Australia.

In order to strengthen the focus on employment outcomes for these workers, it is essential for ADEs to be strong and viable to ensure they can continue to provide not only employment opportunities, but also good employment outcomes.

Are all ADEs affected by the BSWAT decision?

The Government considers that the BSWAT decision does not affect all ADEs. The decision may affect those ADEs that have used the BSWAT to assess the wages of their employees. However, the effect of the decision on an ADE and its employees will vary.

There is a range of views within the sector on how the BSWAT decision will affect an ADE and its employees. ADEs should seek independent legal advice on their own situation.

Is there any support for ADEs outside of the Payment Scheme?

On 21 August 2014, the Australian Government announced $173 million to help the supported employment sector transition to new wage arrangements for supported employees currently working in ADEs. The funding will be used to develop and implement a new productivity-based wage tool (including new assessments) for use across the supported employment sector. This will also assist ADEs with additional wage costs associated with the suspension of BSWAT.

An additional $17 million was provided in the 2015-16 Budget for the business development to improve the viability of ADEs. These initiatives will be delivered from 1 July 2015 until June 2019 to assist ADEs to be ready for the full roll-out of the NDIS in 2019. The funding will enable ADEs to use professional services to help them improve their sustainability and prepare for likely higher wage costs over time.

The development of the productivity-based assessment tool will lead to the phasing out of BSWAT. The Government is committed to assisting the supported employment sector make the transition in a careful and methodical way.

Over the next few years, these businesses will need to evolve and become more robust. The Government is committed to supporting ADEs as they make these changes and face possible additional costs from applying a new wage tool. Work on developing the new tool will commence shortly, in consultation with relevant stakeholders, including employers and unions.

Why is the Commonwealth working towards a second productivity-based wage tool?

The Commonwealth is the sole respondent in the Duval-Comrie v the Commonwealth representative proceeding in the Federal Court concerning the BSWAT. While the Commonwealth is of the view that competency is an appropriate inclusion in wage assessment tools, it also has a strong commitment to support the ongoing employment of people with disability.

In attempting to maintain this outcome, the Government wants to develop a tool that attempts to consider the needs of all parties and reflects feedback received from all sections of the sector. The issue of wage outcomes in the supported employment sector has been a long-standing issue which now needs to be brought to a final resolution prior to full roll out of the National Disability Insurance Scheme (NDIS).

Why isn’t the Government providing the sector with more support to transition to new wage setting arrangements?

While we acknowledge that some ADEs may not view the transition to new wage setting arrangements as an ideal outcome, it is important to emphasise that the support for this transition is a significant investment by the Government at this time.

The Government remains strongly committed to the delivery of supported employment, but is striving to see a more independent and viable sector with wage outcomes for people with disability that work effectively to reduce income support reliance. Further details about sector support will be provided in the near future.

Is there more the Commonwealth could do?

This is a significant investment by the Government at this time. The Government remains strongly committed to the delivery of supported employment, but also wishes to see a more independent and viable sector with wage outcomes that effectively work to reduce income support reliance.

While there is a role in supporting the sector, ADEs are not run, owned, or managed by the Government. The day to day business decisions and overall strategic direction of each enterprise belong to its management team and Board. Over time, the Commonwealth has demonstrated significant and ongoing support for ADEs to undertake reform and address a range of challenges. Working collaboratively will allow solutions to be developed and implemented to address the current issues that harness investment from both the Government and the sector itself.

Why should ADE businesses be supported?

The not for profit sector is a key element in delivering a civil society capable to assist the economic and social participation of Australians experiencing significant disadvantage. ADEs employ some of the most vulnerable workers within the community. The Government is committed to ensuring those employees have opportunities to reach their potential in work and their communities.

How exactly will the $173m be spent?

$32 million has been committed to the development of a new, productivity-based wage tool for use in supported employment environments. These funds will be used to develop and test a new tool with relevant stakeholders, and pay for wage assessments using the tool over the transition period.

$141 million has been contributed to the tapering supplementation of wage outcomes for people with disability in supported employment from 1 February 2015. These funds will be disbursed to ADEs to supplement workers' wages as transition to a new productivity-based tool occurs. A small pool of funds has also been allocated to assist organisations unable to continue to deliver employment services to exit the market and to assist their supported workers to find suitable alternatives.

An additional $17 million was provided in the 2015-16 Budget for the business development to improve the viability of ADEs. These initiatives will be delivered from 1 July 2015 until June 2019 to assist ADEs to be ready for the full roll-out of the NDIS in 2019. The funding will enable ADEs to use professional services to help them improve their sustainability and prepare for likely higher wage costs over time.

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