History of the BSWAT Payment Scheme
The BSWAT Payment Scheme was established by the Australian Government following the Federal Court finding in December 2012. The Federal Court ruled that two supported employees with intellectual impairment were unlawfully discriminated against by the Australian Disability Enterprises (ADEs) employing them because their wages were worked out based on assessments using the Business Services Wage Assessment Tool (BSWAT) (see Nojin v Commonwealth of Australia).
Since the Australian Government owns the BSWAT, the Court also found that the Australian Government unlawfully discriminated against the two supported employees.
You can view the Court’s judgment on the Federal Court of Australia website.
The Business Services Wage Assessment Tool Payment Scheme Act 2015 (the Act), is the legislation underpinning the scheme. You can view the Act and the BSWAT Payment Scheme Rules 2015 as well as the BSWAT Payment Scheme Amendment Act 2016 on the Federal Register of Legislation website.
Tyson Duval-Comrie v Commonwealth of Australia 2013
In 2013, a man named Tyson Duval-Comrie 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.
Tyson is a supported employee with an intellectual impairment who works for an ADE and was paid using the BSWAT. Through the class action, he was seeking compensation for himself and other people who were paid using the BSWAT.
The class action also applied to people who were working in an ADE on or before 22 October 2013.
A person was automatically a ‘group member’ of the class action if they:
- had an intellectual disability, and
- were working in an ADE on, or before, 22 October 2013, and
- had their wages worked out using the BSWAT.
A person was not a group member if they “opted out” of the class action (by formally requesting the Federal Court that they be excluded from the class action).
In February 2016, Tyson and the Government came to an agreement about what should happen in the class action. Together, they decided to settle the class action out of court.
Tyson and the Government agreed to several things in the settlement, including that the Government would change the law so that people would get more money from the scheme.
On 18 March 2016, the changes to the law were passed in the Parliament in the Amendment Act. Under the change, people now get about 70 per cent of the money that was claimed in the class action. Before the law was changed, they would have received about 50 per cent.
Settlement and BSWAT Payment Scheme Amendment Act 2016 – March 2016
On 18 March 2016, the BSWAT Payment Scheme Amendment Act 2016 received Royal Assent. The amendments give effect to a settlement agreement between Tyson Duval-Comrie and the Australian Government.
You can view the Amendment Act on the Federal Register of Legislation website.
The settlement was previously announced by the Minister for Social Services, the Hon Christian Porter MP, on 16 December 2015. You can view the Minister’s media release.
As part of the settlement agreement between Tyson Duval-Comrie and the Australian Government, the Government introduced a Bill 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 participants 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.
You can view the Act, in full.
Once the Amendment Act was passed, Tyson and the Government agreed to end the class action.
Federal Court decision – December 2016
The Federal Court of Australia held a hearing on 12 December 2016 to decide if 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.
Group members who wanted to object to the settlement could fill out an objection notice form and send it to the Court by 7 December 2016.
Group members who did not wish to object to the settlement did not need to do anything.
At the hearing on 12 December 2016, Justice North considered whether the proposed BSWAT settlement was fair.
Justice North approved the settlement of the class action, noting that the BSWAT Payment Scheme would provide fair and reasonable payments to group members.
This decision means that the class action has now ended.
Group members should register and apply to the BSWAT Payment Scheme to get a payment. This is now the only way to get a payment.
Group members cannot take part in any other legal case about the BSWAT in future.
Group members were sent a notice informing them of the decision, and what they need to do next.