Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018 (Cth)

Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018

Business Services Wage Assessment Tool Payment Scheme Act 2015

I, DAN TEHAN, Minister for Social Services, make these Rules under section 102 of the Business Services Wage Assessment Tool Payment Scheme Act 2015.

Dated: 17 April 2018

DAN TEHAN

Minister for Social Services

1

Name of rules

These rules are the Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018.

2

Commencement

These rules commence on the day after they are registered.

3

Schedule

Schedule 1 amends the Business Services Wage Assessment Tool Payment Scheme Rules 2015.

Schedule 1—Amendments

1

Subsection 1.03(1)

Insert:

applicable training wage determination means:

1. (a)

   if a training wage determination has been made under subsection 3.22(1) for an ADE in the relevant financial year—that training wage determination;

2. (b)

   if the Secretary decides under subsection 3.22(4) not to make a training wage determination for an ADE in a particular financial year and there is a training wage determination for that ADE in a subsequent financial year—the training wage determination for the next available subsequent financial year;

3. (c)

   if the Secretary decides under subsection 3.22(4) not to make a training wage determination for an ADE in a particular financial year and there is no training wage determination made for that ADE in a subsequent financial year—the most recent training wage determination made for that ADE.

2

At the end of paragraph 3.06(2)(c)

Insert:

“; and”.

3

After paragraph 3.06(2)(c)

Insert:

1. (d)

   a person making a decision or exercising a power under the Act or these rules may consider evidence not mentioned in the table if the person is satisfied that the evidence would assist in determining the before-tax salary that was paid or was payable by an ADE to the person.

4

At the end of paragraph 3.07(2)(c)

Insert:

“; and”.

5

After paragraph 3.07(2)(c)

Insert:

1. (d)

   a person making a decision or exercising a power under the Act or these rules may consider evidence not mentioned in the table if the person is satisfied that the evidence would assist in determining the hours the person worked at an ADE.

6

After item 3 of the table in subsection 3.07(2)

Insert:

4 If the information recorded in the person’s CRS data does not record the number of hours the person worked at an ADE in the eligible period, or that information is insufficient to determine those hours - the hours shown in the applicable BSWATR as determined by paragraph 3.08(2)(d)

7

After the table below subsection 3.07(2)

Insert:

1. (3)

   If none of the evidence mentioned in the table in subsection (2) is available for the eligible period, the number of hours worked by the person in that period is the average of the hours worked on 20 September and 20 March in the financial year (or if that day is not a business day, the next business day) in which the period occurs by employees who were paid under a BSWAT assessment at the ADE at which the person was employed, having regard to the evidence that is available to the Secretary.

8

At the end of paragraph 3.08(1)(b)

Omit

“or”.

9

Paragraph 3.08(1)(c)

Repeal the paragraph, substitute:

1. (c)

   if there is insufficient evidence to determine the person’s BSWATR or the BSWATR is otherwise not available for the eligible period and there is not a BSWATR that applies to the person’s employment at the ADE in another eligible period between 1 January 2004 and 31 January 2015 – the average BSWATR assessed rate determined under section 3.24, for the ADE in which the person was employed during the relevant financial year; or

2. (d)

   in all other cases – the assessed wage shown in the applicable BSWATR.

10

At the end of paragraph 3.08(2)(b)

Omit

“or”.

11

At the end of paragraph 3.08(2)(c)

Insert:

“; or”.

12

After paragraph 3.08(2)(c)

Insert:

1. (d)

   if there is insufficient evidence to determine the person’s BSWATR or the person’s BSWATR is otherwise not available for the eligible period – the substituted BSWATR determined under subsection (3).

13

Subsection 3.08(3)

Repeal the subsection, substitute:

1. (3)

   The following table identifies the substituted BSWATR for a person for an eligible period (the relevant eligible period).

Item	If there is…	The substituted BSWATR for a person for the relevant eligible period is…
1	One BSWATR applicable to the person that applies to another eligible period during the period between 1 January 2004 and 31 January 2015	that BSWATR.
2	More than one BSWATR applicable to the person where: (a) those BSWATRs apply to one or more eligible periods, other than the relevant eligible periods, during the period between 1 January 2004 and 31 January 2015; and (b) the date of one or more of those BSWATRs is earlier than the relevant eligible period	the earlier BSWATR that is closest to the relevant eligible period.
3	More than one BSWATR applicable to the person where those BSWATRs: (a) apply to one or more eligible periods, other than the relevant eligible period, during the period between 1 January 2004 and 31 January 2015; and (b) do not have a date earlier than the relevant eligible period	the BSWATR that is closest to the relevant eligible period.

1. (4)

   In making a determination of the payment amount for a person under section 17 of the Act, the Secretary may presume that the person was employed by the relevant ADE and awaiting a BSWAT assessment for a period of 180 days, unless otherwise indicated by evidence.

14

After paragraph 3.14(c)

Insert:

1. (d)

   if there is insufficient evidence to determine the applicable BSWATR, or the person’s BSWATR is otherwise not available for the eligible period in relation to the person but there is a BSWATR applicable to the person for a different eligible period during the period between 1 January 2004 and 31 January 2015 – the following two amounts:

   1. (i)

      the hours worked determined in accordance with section 3.07; and

   2. (ii)

      the person’s productivity-scored rate determined in accordance with section 3.13.

2. (e)

   if there is insufficient evidence to determine the applicable BSWATR, or the person’s BSWATR is otherwise not available for the eligible period in relation to the person and there is no BSWATR applicable to the person for a different eligible period during the period between 1 January 2004 and 31 January 2015 – the following two amounts:

   1. (i)

      the hours worked determined in accordance with section 3.07; and

   2. (ii)

      the average productivity-scored wage specified in the applicable training wage determination made under Part 5.

15

Subsection 3.22(1)

Repeal the subsection, substitute:

1. (1)

   The Secretary may make a training wage determination which applies to an ADE in a particular financial year.

16

After subsection 3.22(3)

Insert:

1. (4)

   If the Secretary is not satisfied that there is sufficient evidence to make a training wage determination under subsection 3.22(1), the Secretary may decide not to make a training wage determination for an ADE in a particular financial year.

17

Section 3.23

Repeal the section, substitute:

The Secretary must make a training wage determination for an ADE for a financial year if such a determination is required under paragraph 3.08(1)(b), 3.08(2)(c), 3.14(b) or 3.14(c) unless the Secretary decides not to do so under subsection 3.22(4).

18

Paragraphs 3.24(a) and (b)

1. After “(or the next business day),”, insert

   “having regard to the evidence that is available to the Secretary,”.

19

Paragraphs 3.25(2)(a) and (b)

1. After “(or the next business day),”, insert

   “having regard to the evidence that is available to the Secretary,”.

20

Paragraphs 3.25(3)(a) and (b)

1. At the end of the paragraphs, insert “, having regard to the evidence that is

   available to the Secretary”.

21

Section 6.04 and subsection 6.05(2)

Omit “2005”, substitute “2017