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 (50 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.

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.

The Minister for Social Services, the Hon Christian Porter MP, announced a proposed change in the calculation of the payment amount on 16 December 2015. The Government intends to introduce amending legislation into Parliament in 2016 to increase the payment under the scheme to 70 per cent, rather than 50 per cent, of the alleged lost wages. If the legislation passes the payment will be increased to 70 per cent rather than the current 50 per cent.

You can view the media release here.

Do I need to talk to anyone before I accept a payment?

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?

The Minister for Social Services, the Hon Christian Porter MP, announced a proposed change to the calculation of the payment amount on xx. The Government intends to introduce amending legislation into Parliament in 2016 to increase the payment under the scheme to 70 per cent, rather than 50 per cent, of the alleged lost wages. If the amending legislation passes the payment will be increased to 70 per cent  and certain other changes will be made to the Payment Scheme (including extending the dates for registering and applying for, and accepting offers from, the Payment Scheme). 

The representative Applicant in the BSWAT class action has agreed to settle the class action, on behalf of himself and the other class members, on the basis that the amending legislation passes the Parliament.  As is standard in class actions, the settlement is subject to Court approval, which will be considered by the Federal Court in 2016.

If the amending legislation passes the Parliament, the representative Applicant and the Commonwealth together will request that the Court approve the settlement and dismiss the class action.  If the Court approves the settlement, that will mean that those class members who have not opted out of the class action cannot bring further legal action against the Commonwealth or other persons about the use of the BSWAT.

Eligibility

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: bswat@dss.gov.au.

Electronic Newsletter: Disability eNews

 

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