Questions and Answers: Business Services Wage Assessment Tool (BSWAT) Payment Scheme
This web page includes general information about the BSWAT Payment Scheme, including how it works and what the eligibility criteria are. For information about the BSWAT itself, see Questions and Answers: BSWAT. For information about how to register for the scheme and about the rest of the payment scheme process, see BSWAT Payment Scheme Process.
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 was established by the Australian Government following the Federal Court finding in December 2012 that the BSWAT indirectly discriminated against two Australian Disability Enterprises (ADEs) 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 Business Service Wage Assessment Tool (BSWAT) Payment Scheme Act 2015 received Royal Assent on 30 June 2015
You can view the Act and rules on the Comlaw 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 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 legal advice before accepting an offer and may also need to see a financial counselor. Certificates from the financial counselor and the legal adviser must accompany the applicant’s acceptance of the offer. Access to a legal adviser and a financial counselor 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.
What about the BSWAT class action?
Before accepting an offer under the scheme, you should seek legal advice and financial counselling about the BSWAT class action (or any other legal case you might want to bring about the BSWAT).
- If you are a group member of the BSWAT class action and you accept a payment under the scheme, you will automatically stop being a group member of the BSWAT class action. Further information regarding the BSWAT class action is available at the Maurice Blackburn Lawyers website.
- If you accept a payment under the scheme, you will not be able to make any further legal claims regarding BSWAT.
- You can seek legal advice and financial counselling from any legal advisors and financial counsellors funded by the scheme (the Department will publish on its website a list of those people). Or, you can seek advice from a legal advisor or financial counsellor of your choosing, and they can seek funding from the Commonwealth (subject to limits) to pay for the advice they provide you. The limits on funding are that the Department will pay a maximum of $850 to legal advisors and a maximum of $435 to financial counsellors for providing legal advice and financial counselling in relation to the scheme.
How does this fit with the temporary exemption application the Department of Social Services made to the Australian Human Rights Commission (AHRC)?
The BSWAT Payment Scheme is a separate matter to the AHRC temporary exemption. ADEs should consider their obligations under the Disability Discrimination Act 1992 and seek appropriate legal advice around their individual situation and continued use of the BSWAT.
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 (the Department) will use information held by the Commonwealth to assess scheme eligibility. In certain circumstances, additional information may be requested, however the Department will attempt to minimise these kinds of requests.
Why aren’t other people with disability who have had their wages assessed by BSWAT eligible for the scheme?
In the Federal Court decision of 21 December 2012, two ADEs 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 ADE 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.
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 lump sum 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.
Lump sum payments received under the scheme are not exempt from income tax but a tax offset is calculated that will help reduce any tax payable. An additional payment will be included as part of the payment scheme offer to meet the cost of any tax payable.
What is the role of 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 the Department will endeavour to ensure that the relevant ADE’s are advised prior to any information being released.
How can I find out more?
Visit the BSWAT Payment Scheme page.
People with disability, their families and carers are able to call the BSWAT information line: 1800 880 052.
Queries can be sent to the BSWAT inbox: firstname.lastname@example.org.
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