Questions and Answers: Business Services Wage Assessment Tool (BSWAT) Payment Scheme

What is this scheme?

The BSWAT Payment 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 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 Services Wage Assessment Tool Payment Scheme Act 2015 received Royal Assent on 30 June 2015

You can view the Act and associated rules on the Federal Register of Legislation website.

Amendments to the scheme

On 18 March 2016, the Business Services Wage Assessment Tool Payment Scheme Amendment Act 2016 (the Amendment Act) received Royal Assent. The Amendment Act made several changes to the scheme, including:

  • increasing payments to eligible participants;
  • extending all deadlines for the scheme, including for registration and application, by 12 months;
  • making the requirement to seek legal advice before participants can accept a payment offer optional; and
  • allowing the personal legal representative of a deceased person who would have been eligible for the scheme to apply on their behalf

The amendments give effect to a settlement agreement between the parties in the representative proceeding, Duval-Comrie v the Commonwealth. The settlement was previously announced by the Minister for Social Services, the Hon Christian Porter MP, on 16 December 2016. The information on this webpage reflects the changes made by the Amendment Act.

You can view the Amendment Act on the Federal Register of Legislation website.

You can view the Minister’s media release here.

How much will payments be?

The payment amount to be offered will be 70 per cent 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. To account for the rising cost of living, the payment amount will also be indexed to reflect increases in the Consumer Price Index.

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?

Some participants may be required to seek independent financial counselling before they can accept an offer of payment. Optional financial counselling and legal advice, paid for by the Government, is available to everyone who receives an offer of payment to help them make an informed choice. Payment for financial counselling and legal advice is subject to limits, being a maximum of $435 for financial counselling and $850 for legal advice.

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 a 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?

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 disability who works for an ADE and was paid using the BSWAT. Through the class action, he is seeking compensation for himself and other people who were paid using the BSWAT.

In the past, the class action only applied to people who were working in an ADE on 22 October 2013. Now, the class action also applies to people who were working in an ADE on or before 22 October 2013.

A person is now automatically a ‘group member’ of the class action if they:

  • have 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 will not be a group member if they have “opted out” of the class action. This is a formal court process which requires the submission of a specific form to the Federal Court by a particular date. The time for opting out has now passed.

Recently, Tyson Duval-Comrie 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 have agreed to several things in the settlement.

Tyson and the Government agreed that the Government would try to change the law so that people get more money from the scheme.

The changes to the law have recently been passed in the Parliament in the Amendment Act. Now, people will get about 70% of the money that was claimed in the class action. Before the law was changed, they would have received about 50%.

Now that the Amendment Act has been passed, Tyson and the Government agree that the class action should end.

The Judge still needs to agree to this settlement. The Judge will need to say it’s fair and reasonable for everyone in the group.

If the Judge agrees with the settlement

The class action will end. Group members will be able to register and apply to the scheme to get a payment. This will be the only way to get a payment. Group members won’t be able to take part in any other legal case about the BSWAT in future.

If the Judge does not agree with the settlement

The class action will continue and the Judge will need to decide who wins. If Tyson wins, group members may get money from the class action. If the Government wins, group members won’t get money from the class action.

Proposed Settlement Notice

The Federal Court of Australia is holding a hearing to decide if the proposed BSWAT settlement is fair. The Federal Court is giving group members the opportunity to object to the settlement if they do not feel it is fair.

If you are a group member and you do not wish to object to the settlement, you do not need to do anything. Please do NOT fill out the below form. If the settlement is approved, you will receive a further notice informing you of that and of what you need to do next.

If you are a group member and you do oppose the settlement, you can tell the Judge by filling out the objection notice form and sending it to the Court by 5.00pm on 29 July 2016. We call this form an “objection notice”. Copies of the objection notice form are at the bottom of the Proposed Settlement Notice.

If you want to send any other documents to the Court about why you oppose the settlement, you should attach them to your objection notice.

Who is eligible?

A person is eligible for the scheme, if the person, at any time between 1 January 2004 and 28 May 2014:

  • had an intellectual impairment; and
  • 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.

Other 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 income 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 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.

In the coming months, information sessions for potentially eligible supported employees will be held at certain ADE premises and other locations across the country. The sessions are designed to provide a clear understanding of the scheme and to help individuals make an informed decision on whether to register and apply for a payment. If individuals do decide to register and apply, they will be helped to do so at the sessions. The Department is in the process of contacting ADEs about the sessions.

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 to be provided to 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 list page.

Queries can be sent to the BSWAT inbox:

Electronic Newsletter: Disability eNews

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