Wage assessments in Australian Disability Enterprises

BSWAT Payment Scheme

Supported employees with intellectual disability working in Australian Disability Enterprises may be eligible for a payment under a new scheme.

For more information, including eligibility criteria, see the BSWAT eligibility payment scheme.

New Wage Assessment Tool and Wage Supplementation

The Assistant Minister for Social Services, Senator the Hon Mitch Fifield, announced $173m committed by the Australian Government to assist in delivering new wage arrangements for the supported employment sector (21 August 2014 - Media Release - Minister Fifield).

Further information about the development and roll out of these initiatives will be available in the coming weeks.

How is employment for people with disability supported in Australia?

The Australian Government has a number of strategies in place to support the employment of people with disability and to assist them to reach their social and economic potential.

These include:

How are wages for workers with disability assessed and paid?

Internationally, there are precedents where people with disability are paid a reduced wage. In Australia, this occurs in conjunction with a range of other supports and benefits including income support payments and employer incentives including wage subsidies and workplace modifications. These strategies are in place to encourage mainstream employers to engage a diverse workforce and to provide people with disability opportunities for economic participation.

Within the Supported Employment Services Modern Award (2010) Fair Work Australia included a number of assessment tools for use in Australian Disability Enterprises (ADEs).  Depending on the industrial arrangements in an ADE the wage assessment tool in place can vary.  Wage assessment tools usually compare the productivity and/or competency of a person with disability to someone without disability and the person’s wage is determined by this comparison.  For example, if someone with disability is only 80 per cent productive/competent at their job, they would get paid 80 per cent of the relevant Award for that job.  Each of the 30 wage assessment tools work differently, but all mean that a person with disability may get paid less than the Award, depending on their productivity/competency.  

There are four main wage assessment tools used in ADEs. Two are owned by the Australian Government: the Supported Wage System and the Business Services Wage Assessment Tool. Around 50 per cent of workers in ADEs have their wages assessed using these tools. The other two most frequently used tools are the Greenacres tool and the Skillmaster tool.

In the mainstream labour market all modern Awards and many enterprise agreements allow for the Supported Wage System to be used.  The Supported Wage System is the only tool permitted for use in the open labour market. It aims to increase employment opportunities for people with disability by providing an industrial relations framework that enables the legal payment of a pro-rata wage.  Like mainstream employers, ADEs are permitted under the Australian industrial relations system to pay pro-rata wages in line with an approved wage assessment tool.

What is the Business Services Wage Assessment Tool (BSWAT) and how does it work?

Developed by this department, the Business Services Wage Assessment Tool (BSWAT) is the most commonly applied wage determination tool used in Australian Disability Enterprises (ADEs) – about half of the supported employees in ADEs have had their wages assessed using this tool.

The BSWAT has two components that assess both the productivity and competency of supported employees.

The competency component and the productivity component are scored separately, with the results combined to determine an overall pro-rata wage rate.

Federal Court decision

In the court case Nojin v Commonwealth & Anor, the Full Federal Court declared that two Australian Disability Enterprises (ADEs) had discriminated against two of their employees.  This was because the employees had to undergo a wage assessment using the Business Services Wage Assessment Tool (BSWAT) in order to secure a higher wage.  The two employees had intellectual disabilities and were employed at the Grade 1 classification under the Supported Employment Services Award 2010 (the 2010 Award), to perform basic and routine duties.

The Full Federal Court considered the circumstances of the two employees who brought the case and how the BSWAT applied to them.  The judgment of the Court only applies to those particular employees and ADEs, but the Australian Government is looking at how it might apply to other employees in similar circumstances. 

The two employees did not include a claim for monetary compensation, so the Court did not consider whether any back-pay or compensation was payable.

The Full Federal Court judgement can be found on the court’s website 

What does the judgement mean for the BSWAT?

Wage assessments using the BSWAT have been put on hold while the Australian Government addresses the issues raised by the Full Federal Court’s decision.

What support has there been to assist people with disability, their families and carers, service providers and other interested groups to understand developments following the judgment?

BSWAT Employment Response Team (BERT)

Since the judgement the Department has been working through the Federal Court decision to address the broader implications for people with disability working in ADEs and the sector. The Department has established the BSWAT Employment Response Team (BERT) to identify and work through the issues. The Department is also working with other government departments to assist us in this work.

Consultations about the future of wage assessments in Australian Disability Enterprises

In July 2013 the department conducted consultations about working out how wage assessments might be done in the future.  There were two discussion guides produced:

Future wage setting arrangements in Supported Employment: a discussion guide

The future of wage setting in Supported Employment Easy English discussion guide

We talked to over 600 people with disability, their families and carers, advocates, ADE providers, peak bodies and other interested parties. The feedback people gave us is attached below:

People with disability plain English

People with disability Easy English

Other stakeholders:  future of wage assessments in Australian Disability Enterprises

Ongoing Communication

The Department will continue to communicate developments about ADE wage assessments as developments occur. These methods will include:

  • Direct letters to people with disability, their families and carers;
  • Through this web page;
  • Updates through disability e-news. To join the disability e-news mailing list, visit the enews website.

The Department has also established an information line for people with disability who may have questions about the Court case or want further information about their wages and conditions. The contact details for the information line are as follows:

Telephone Number: 1800 880 052
TIS: 131450
TTY: 1800 301 130
NRS: 1800 555 677

Temporary Exemption from the Disability Discrimination Act (1992)

Because it will take time to work through all the issues the department lodged a section 55 exemption application under the Disability Discrimination Act 1992. The Department of Social Services sought a three-year exemption to allow time for transition to a new wage assessment process.

The three-year timeframe was to make sure that the transition process was as smooth as possible and that a changing industrial landscape did not lead to unintended consequences, like people with disability losing their jobs.

In late April 2014, the Australian Human Rights Commission released a decision regarding the Department's section 55 application.

The decision and media release is now available on the Australian Human Rights Commission website.

Easy English booklet about the Australian Human Rights Commission decision

BSWAT Frequently Asked Questions

Further questions

If you have questions about these matters please email bswat@dss.gov.au with your enquiry.

The Department will continue to try to sort out how to assess wages for people with disability, watch the website and disability enews for developments.

Last updated: