Concerns raised over Government disability payments scheme

Parliament house flag post

Concerns raised over Government disability payments scheme

Posted 26/08/2014 by Luke Buckmaster

The Senate is scheduled this week to debate legislation establishing a payment scheme for around 10,000 workers with intellectual disability whose wages were determined using a tool found by the Full Court of the Federal Court to be discriminatory. The use of tool, the Business Services Wage Assessment Tool (BSWAT), has long been contentious and the Government’s proposed BSWAT payment scheme is equally so.


In 2012 the Full Court of the Federal Court decided (Nojin v Commonwealth) that the employers of two men with intellectual disabilities, Mr Nojin and Mr Prior, had unlawfully discriminated against them by imposing a requirement or condition that, in order to secure a higher wage, they must undergo a wage assessment through the BSWAT. The employers in both cases were Australian Disability Enterprises (ADEs), which were funded by the Commonwealth to provide supported employment. ADEs provide work in such areas as packaging, assembly, production, cleaning services, laundry services and food services

Around half of supported workers have their wages assessed using the BSWAT, making it the most commonly used assessment tool. The BSWAT is comprised of two components. The first is a productivity component intended to assess a worker’s output compared with a person who does not have a disability (based on an industry benchmark or a comparator).

The second is a competency component, which is intended to measure an employee’s value to an organisation against a broader set of standards (or competencies) than can be obtained by simply measuring their capacity to perform the tasks associated with a job. Supported employees are paid a reduced (pro rata) wage intended to reflect their productivity and competence in performing a job.

It is the competency component of the BSWAT that was the basis of contention in Nojin v Commonwealth.

The Court decided that the unlawful discrimination arose because competency assessment of the kind measured through the BSWAT placed intellectually disabled persons at a disadvantage compared with other workers. The disadvantage was that the BSWAT required the person being tested to have the capacity to articulate abstract concepts.

Although it was the employers who were liable for the discrimination, the Commonwealth agreed to bear the liability because it had devised the BSWAT and promoted its use.

In December 2013, a class action (‘representative proceedings’) was lodged against the Commonwealth in the Federal Court, alleging unlawful discrimination against workers with intellectual disabilities working in ADEs.

The proposed scheme

According to the Government, the BSWAT payments scheme ‘will not pay compensation, but will provide a payment to eligible people’. Registration for the scheme is open between 1 July 2014 and 1 May 2015.

If eligibility is established, a payment amount will be calculated, based on 50 per cent of the amount the worker would have been paid had the productivity element only of the BSWAT been applied. Under the scheme’s ‘release and indemnity’ provisions, acceptance of a payment means that an individual is unable to participate in the representative proceeding currently underway or any other legal proceeding in connection with the BSWAT.

In deciding whether to accept a payment under the scheme, the applicant must seek independent financial counselling and legal advice, funded through the scheme. Once an offer has been formally accepted by the applicant, payment will be made.


As suggested in the relevant Parliamentary Library Bills Digest, controversy surrounding the payment scheme has most likely been heightened by the absence of adequate explanation by the Government of issues such as why payments have been set at the level they have; and whether it is fair and reasonable to make payment under the proposed scheme conditional on ceasing participation in representative action.

The Government argues that the payment scheme is necessary to ensure that ADEs are able to continue to provide employment to people with disability. Disability services peak body, National Disability Services has described the payment scheme as providing certainty to eligible employees by providing them with a payment without the necessity of engaging in litigation.

However, disability advocacy organisation, People with Disability Australia, has argued that the scheme represents an attempt to ‘sabotage’ the efforts of vulnerable people to obtain compensation for discrimination suffered as a result of a wages assessment using the BSWAT and that it should be opposed.

The Parliamentary Joint Standing Committee on Human Rights has also raised a number of substantial concerns with these Bills, including in relation to the method for determining payments; the ‘release and indemnity’ provisions; aspects of the review arrangements; the role of nominees in the scheme; and strict timeframes applying to applicants, which it suggests may have a disproportionately negative effect on people with an intellectual impairment.

The legislation has been referred to the Senate Community Affairs Legislation Committee for inquiry and report by 26 August 2014.

Thank you for your comment. If it does not require moderation, it will appear shortly.

Add your comment

[Click to expand]

We welcome your comments, or additional information which is relevant to a post. These can be added by clicking on the ‘Add your comment’ option above. Please note that the Parliamentary Library will moderate comments, and reserves the right not to publish comments that are inconsistent with the objectives of FlagPost. This includes comments that are not relevant to the article, factually incorrect or politically partisan, as well as spam, profanity and personal abuse. We will close comments after three months.

Generate a new image
Type characters from the image:

Facebook LinkedIn Twitter Add | Email Print


Flagpost is a blog on current issues of interest to members of the Australian Parliament

Parliamentary Library Logo showing Information Analysis & Advice




Refugees asylum immigration climate change Australian foreign policy parliament social security elections welfare reform welfare policy school education Australian Defence Force health financing Private health insurance higher education emissions trading indigenous Australians women people trafficking taxation Employment illicit drugs gambling health reform federal election 2010 Medicare Middle East disability Sport Australian Bureau of Statistics statistics United Nations Asia Afghanistan income management health forced labour Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget Industrial Relations Carbon Pricing Mechanism politics dental health Australian Electoral Commission WADA criminal law transport aid child protection environment poker machines Australia in the Asian Century steroids National Disability Insurance Scheme detention aged care 43rd Parliament slavery health system OECD ASADA Law Enforcement Australian Federal Police Fair Work Act Australian Public Service governance labour force people smuggling debt international relations constitution New Zealand food Australian Crime Commission pharmaceutical benefits scheme corruption pensions public service reform children's health Aviation federal election 2013 foreign debt gross debt net debt defence capability parliamentary procedure Senate Senators and Members ALP Newstart Parenting Payment multiculturalism Youth Allowance sea farers skilled migration Banking UK Parliament election results voting mental health Federal Court terrorist groups science social media Higher Education Loan Program HECS federal state relations accountability Papua New Guinea youth paid parental leave same sex relationships coal seam gas customs planning doping crime health risks International Women's Day Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy public policy Census Population violence against women domestic violence China ADRV terrorism transparency research and development welfare ASIO intelligence community Australian Security Intelligence Organisation carbon tax mining High Court military history electoral reform employer employee renewable energy regional unemployment fishing by-election European Union family assistance United Nations Security Council Australian economy forestry food labelling vocational education and training Drugs welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report energy social inclusion human rights paternalism Financial sector national security fuel disability employment Tasmania integrity standards NATO Australian Secret Intelligence Service sexual abuse World Trade Organization Australia public health housing affordability bulk billing political parties water productivity health policy Governor-General US economy trade unions export liquefied natural gas foreign bribery firearms question time speaker superannuation public housing expertise climate Intergovernmental Panel on Climate Change leadership Department of Agriculture Fisheries and Forestry regulation Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare Indigenous constitutional recognition of local government referendum consumer laws PISA competition policy royal commission US politics language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage rural and regional alcohol entitlements ministries Hung Parliament social citizenship maritime Iran ANZUS regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation Members of Parliament Scottish referendum early childhood education Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct retirement Parliament House standing orders prime ministers election timetable sitting days First speech defence budget submarines workers Canada Somalia United Kingdom GDP world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Rent Assistance obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament Korea rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra environmental law federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office work-life balance

Show all
Show less
Back to top