Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Social Services

Business Services Wage Assessment Tool Payment Scheme Act 2015

Business Services Wage Assessment Tool Payment Scheme

Amendment Rules 2018

Purpose and Background

The Business Services Wage Assessment Tool Payment Scheme Act 2015 (the Act) and the Business Services Wage Assessment Tool Payment Scheme Rules 2015 (the Rules) establish the Business Services Wage Assessment Tool (BSWAT) Payment Scheme (the BSWAT payment scheme).  The BSWAT payment scheme is a scheme for making payments in relation to the use of the BSWAT.  A person is eligible for the BSWAT payment scheme if in the period starting 1 January 2004 and ending on 31 January 2015 the person:

• had an intellectual impairment; and
• was employed at an Australian Disability Enterprise (ADE); and
• was provided with employment support by the ADE; and
• was paid a training wage while waiting for a BSWAT assessment to be completed or alternatively, the minimum wage payable to the person was worked out using a BSWAT assessment.

If a person makes a valid application for the BSWAT payment scheme and a determination is made that the person is eligible for the scheme, then subsection 17(3) of the Act requires the Secretary to make a determination of the payment amount. Subsection 8(1) of the Act provides that the payment amount for a person is worked out by a method prescribed by the Rules.

The Rules provide a framework for the operation of the BSWAT payment scheme.  They deal with matters such as eligibility, calculating the payment amount, acceptances, internal and external reviews, nominees, training wage determinations, disclosure of protected information and legal and financial counselling services.

Chapter 3 of the Rules prescribes the method for calculating payment amounts for persons who are eligible for a payment under the BSWAT payment scheme.  Broadly, the payment amount is worked out by:

1. calculating the amount the person was actually paid by the ADE.  This is called a person’s “actual wage”;
2. working out what the person would have been paid had the wages been calculated only using the productivity-scored component of an applicable BSWAT assessment for the person.  This is called a person’s “productivity‑scored wage”; and
3. working out the difference between the two amounts at (1) and (2) calculating the payment amount.  Indexation factors are then applied and the amount is multiplied by 0.7.  Further calculations are then made to account for taxation considerations.

Part 5 of Chapter 3 of the Rules prescribes the method for calculating training wage amounts for persons who were paid a training wage while they were waiting for a BSWAT assessment.  As these persons did not ever have a BSWAT assessment, a ‘productivity-scored component’ is not available for them.  The Rules prescribe a method for calculating their “productivity-scored wage” based on averages available for the ADE.

In administering the BSWAT payment scheme, some difficulties have been identified when seeking to calculate a payment amount for persons who are eligible for payment under the scheme but where there is insufficient evidence, of the type prescribed by the Rules, to calculate a payment amount for such persons.

The purpose of the Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018 (the Amendment Rules) is to allow decision-makers to consider different evidence than what is currently prescribed.  The Amendment Rules will also allow for an alternative method for calculating a payment amount for a person where there is insufficient evidence to ascertain:

• the number of hours worked by the person at the ADE in a period where they are eligible for payment under the BSWAT payment scheme; or                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     
• the BSWAT Report (which records a BSWAT assessment) for the person in the relevant period.

The Amendment Rules also make minor amendments to the Rules to clarify the intent of some of the provisions.

Section 24 of the Act provides that a person may apply to the Secretary to review a determination made for a person under section 17.  Under section 17, the Secretary must make a determination of the payment for a person who is eligible for the BSWAT payment scheme.  Section 26 of the Act provides that a person may apply to the Secretary for external review of a determination for the person under section 17 that is made or affirmed by the Secretary under section 24.

The Amendment Rules do not change these rights of review.  A person will be able to apply for internal review and subsequently external review in relation to a determination of a payment amount calculated in accordance with the new methods inserted by the Amendment Rules.

Section 102 of the Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act.

Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make an instrument of a legislative character (including rules), the power shall be construed as including a power to amend such an instrument. 

The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.

Commencement

The Amendment Rules commence on the day after they are registered.

Consultation

Before the Rules were originally made in July 2015, consultation was undertaken on the issues surrounding the decision of the Federal Court relating to the use of the BSWAT.  In addition, consultations occurred on specific design elements of the BSWAT payment scheme.

After the Act and Rules were originally enacted, a mediated settlement agreement was made between the Commonwealth and the Applicant in a representative proceeding in the Federal Court of Australia (Duval-Comrie v the Commonwealth VID 1367/2013).  As part of the deed of settlement, the Applicant agreed that he and other members of the proceeding were at liberty to apply for payment under the BSWAT payment scheme.  That settlement led to the amendment of the Act, through the Business Services Wage Assessment Tool Payment Scheme Amendment Act 2016 (the Amendment Act).  Consultation was undertaken as part of the mediated settlement process, including with:

• the Applicant, through Maurice Blackburn Lawyers (the Applicant’s representative) regarding settlement terms; and
• AED Legal Centre regarding settlement terms.

When the Rules were last amended, the Department of Social Services consulted with the Applicant’s representative on some of the matters affecting the calculation of payment amounts under the Rules.  Since then, decision-makers have had difficulties calculating payment amounts in circumstances where there is insufficient evidence to ascertain the number of hours worked by an eligible person and where evidence relating to the BSWAT assessment used for an eligible person is not available.

Further consultation has not been undertaken as the amendments clarify the method of calculating payment amounts under the Rules.  The Amendment Rules are consistent with the deed of settlement between the Commonwealth and the Applicant in the representative proceedings.  There is no obligation under the deed of settlement for the Commonwealth to consult with the Applicant or the Federal Court on the Amendment Rules. 

In these circumstances, it was considered that further consultation was unnecessary.

Regulation Impact Statement (RIS)

The Office of Best Practice Regulation (OBPR) has been consulted and advised a RIS is not required. The OBPR reference for this consultation and advice is 23630.

Explanation of the provisions

Schedule 1 – Amendments

Item 1 inserts a new definition of applicable training wage determination in subsection 1.03(1).

Chapter 3 of the Rules sets out how to calculate the payment amount for a person who is eligible for the BSWAT payment scheme.  One of the steps in calculating the payment amount is to determine the BSWAT Report (BSWATR) assessed rate under section 3.08 and the productivity-scored wage under section 3.14 for each eligible period.  In some circumstances, there is no BSWATR assessed rate or productivity scored wage because the person was paid a training wage while waiting for a BSWAT assessment.  In these circumstances, the Secretary must make a training wage determination that applies to a particular ADE in a particular financial year.

The training wage determination must specify the average BSWATR assessed rate (calculated under section 3.24) and the average BSWATR productivity-scored rate (calculated under section 3.25) for an ADE in a financial year.  To make those calculations, consideration is given to the average assessed wage and hourly award rate of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September and 20 March of the relevant financial year.

Case based funding data was used to determine all the employees working on the specified dates (20 September and 20 March) in each financial year.  Commonwealth Rehabilitation Scheme (CRS) data was used to calculate the average BSWATR assessed rate and BSWATR productivity-scored rates for all employees identified in the case based funding data.

In some instances there is no specific data for employees in an ADE for particular financial years.  To address this issue, the new definition of applicable training wage determination, in conjunction with new subsection 3.22(4) (inserted by item 16), allows for the next available, subsequent training wage determination for an ADE to be used where there is insufficient data to make a training wage determination for a particular financial year.  For example, if there is insufficient data to make a training wage determination for an ADE for 2004/05, but there is a training wage determination for that ADE for 2005/06, then that determination can be used for 2004/05. 

Item 2 makes a technical amendment to paragraph 3.06(2)(c) which is consequential to the amendments made by item 3.

Item 3 inserts new paragraph 3.06(2)(d).

Chapter 3 of the Rules sets out how to calculate the payment amount for a person who is eligible for the BSWAT payment scheme.  In calculating the payment amount, it is first necessary to work out the amount the person was actually paid by an ADE.  Part 2 of Chapter 3 provides for working out the actual wage of a person.  Section 3.06 provides the first step in working out the actual wage of a person and it requires a determination of the person’s gross pay for each eligible period.  Eligible period is defined in subsection 3.02(2) to mean the person’s normal pay period in which there was an eligible day for the person.

Subsection 3.06(2) contains a table of prescribed evidence that is to be used to determine a person’s before-tax salary that was paid or was payable by an ADE to a person.  This subsection is made for the purposes of section 11 of the Act which relevantly allows for the Rules to prescribe matters relating to the evidence needed to work out the amount of the payment to be offered to a person.  The evidence set out in the table in subsection 3.06(2) is:

• payslip or other document from the ADE verifying the before-tax salary for the eligible period;
• information recorded in the person’s Centrelink data.

In some circumstances, the evidence prescribed in the table is insufficient or otherwise unavailable to determine a person’s gross pay in each eligible period.  In these circumstances, it can be helpful for a person making a decision or exercising a power under the Act or the Rules to consider evidence other than the evidence mentioned in the table in order to determine the gross pay.  New paragraph 3.06(2)(d) makes it clear that a decision-maker can consider other evidence when satisfied that the evidence would assist in determining the before-tax salary that was paid or was payable by an ADE to the person.

Item 4 makes a technical amendment to paragraph 3.07(2)(c) which is consequential to the amendment made by item 5.

Item 5 inserts new paragraph 3.07(2)(d).

In order to calculate the person’s actual wage for the purpose of Part 2 of Chapter 3 of the Rules, section 3.07 requires there to be a determination of the number of hours worked by the person in each eligible period.  For this purpose, a decision-maker must consider the evidence mentioned in the table in section 3.07.  The evidence is:

• payslip or other document from the ADE verifying the number of hours worked;
• in certain circumstances, information recorded in the person’s Centrelink data;
• in other circumstances, information recorded in the person’s CRS data;
• the applicable BSWATR as determined by paragraph 3.08(2)(d).  This table item is inserted by item 6 of the Amendment Rules and paragraph 3.08(2)(d) is inserted by item 12.

In some instances, none of the evidence mentioned in the table is available.  New paragraph 3.07(2)(d) allows for evidence that is not expressly included in the table in section 3.07 of the Rules to be considered for the purpose of ascertaining the number of hours worked by a person for each eligible period.  This will ensure that eligible persons are not prevented from receiving a payment amount due to being unable to produce the type of evidence prescribed by the table in section 3.07 and provide the person making a decision or exercising a power under the Act with greater capacity to calculate the hours worked by a person at an ADE.

Item 6 inserts new item 4 in the table in subsection 3.07(2).

As described for item 5, a decision-maker must consider the evidence mentioned in the table in section 3.07 when determining the hours worked by a person in each eligible period.  In some circumstances, the evidence mentioned in table items 1-3 may not be available or may be insufficient to determine the hours worked by the person for each eligible period at the ADE.  In these circumstances, new table item 4 will allow a decision-maker to determine the hours worked by considering the hours shown in the applicable BSWATR as determined by paragraph 3.08(2)(d).  Paragraph 3.08(2)(d) is inserted by item 12 of the Amendment Rules.

Item 7 inserts new subsection 3.07(3).

New subsection 3.07(3) provides for a new method of determining the number of hours a person worked at an ADE in an eligible period where none of the evidence mentioned in the table in subsection 3.07(2) is available to determine those hours.  The new method will be based on an average of the hours worked at the ADE by other employees at the ADE at which the person was employed.  That average will be based on the hours worked by the other employees on 20 September and 20 March (or if that day is not a business day, the next business day) in the financial year in which the eligible period occurs. 

In calculating this average, a decision-maker is only required to have regard to the evidence that is available to them.  For example, there may be evidence available of the hours worked by some employees at the ADE on the relevant day, but not for other employees.  In these circumstances, the average can be calculated based on the hours worked by employees whose evidence is available.

Item 8 makes a technical amendment to paragraph 3.08(1)(b) that is consequential to the amendment made by item 9.

Item 9 substitutes paragraph 3.08(1)(c) with new paragraphs 3.08(1)(c) and (d).

Section 3.08 of the Rules contains the third step in calculating a person’s actual wage for the purposes of working out a payment amount for a person under the BSWAT payment scheme.  This section requires a determination to be made of the BSWATR assessed rate.  The BSWATR records a person’s BSWAT assessment.  Under current section 3.08, the BSWATR assessed rate is the assessed wage shown in the “applicable BSWATR”, which is defined by subsection 3.08(2).  That definition relies on there being one or more BSWATRs for an eligible period, except in circumstances where the person was paid a training wage.

In some instances, there is insufficient evidence to determine a person’s BSWATR, or the person’s BSWATR is otherwise not available for a particular eligible period.  New paragraph 3.08(1)(c) provides for an additional method of determining the BSWATR assessed rate where there is insufficient evidence to determine the actual BSWATR for the person for an eligible period.  The new method will apply only if 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. 

In the circumstances where new paragraph 3.08(1)(c) applies, the person’s BSWATR assessed rate is the average BSWATR assessed rate determined under section 3.24, for the ADE in which the person was employed during the relevant financial year.  Under section 3.24, the Secretary is to determine the average BSWATR assessed rate for an ADE for a financial year by averaging the following amounts:

• the average assessed wage of all employees at the ADE whose wages were assessed with the BSWAT as at 20 September of the eligible financial year (or the next business day), with wages of employees adjusted for any national minimum wage increase from the date of that increase; and
• the average assessed wage of all employees at the ADE whose wages were assessed with the BSWAT as at 20 March of the eligible financial year (or the next business day), with wages of employees adjusted for any national minimum wage increase from the date of that increase.

New paragraph 3.08(1)(c) ensures there is a method for calculating the BSWATR assessed rate for a person for each eligible period where there is no evidence available of a BSWATR that applies to that particular eligible period, or another eligible period.  This amendment is needed to ensure that it is possible to calculate the payment amount for all BSWAT payment scheme applicants who have been determined to be eligible for a payment under the scheme.

If paragraphs 3.08(1)(a), (b) and (c) do not apply, then paragraph 3.08(1)(d) provides that the BSWATR assessed rate is the assessed wage shown in the applicable BSWATR.  Subsection 3.08(2), as amended by items 10 to 12, provides for the applicable BSWATR for a person for an eligible period. 

Items 10 and 11 are technical amendments to paragraphs 3.08(2)(b) and (c) which are consequential to the amendment made by item 12.

Items 12 and 13 insert new paragraph 3.08(2)(d) and substitute subsection 3.08(3) with new subsections 3.08(3) and (4).

If paragraphs 3.08(1)(a), (b) and (c) do not apply, then paragraph 3.08(1)(d) provides that the BSWATR assessed rate is the assessed wage shown in the applicable BSWATR.  Subsection 3.08(2) provides for the applicable BSWATR for a person for an eligible period.

Current paragraphs 3.08(2)(a) and (b) provide that the applicable BSWATR for a person, who was not paid a training wage while waiting for a BSWAT assessment, for an eligible period is:

• if there is one BSWATR for the person that is applicable to all of the days in the eligible period – that BSWATR;
• if there is more than one BSWATR applicable to an eligible period – the BSWATR which shows the highest assessed wage.

Paragraph 3.08(2)(c) provides for the applicable BSWATR for a person who was paid a training wage while waiting for a BSWAT assessment.

In some circumstances, there is no evidence available of the BSWATR that applies to a person for a particular eligible period (the relevant eligible period) where that person was not paid a training wage while waiting for a BSWAT assessment.  However, there may be evidence of one or more BSWATRs that apply to a person for a different eligible period.  In these circumstances it is appropriate to use those BSWATRs to determine the BSWATR assessed rate for the relevant eligible period.  New paragraph 3.08(2)(d) and subsection 3.08(3) allow for this to occur by having regard to the substituted BSWATR for the relevant eligible period.

New subsection 3.08(3) inserts a table to identify the substituted BSWATR for a person for the relevant eligible period as follows:

• if there is one BSWATR applicable to the person that applies to another eligible period during the period between 1 January 2004 and 31 January 2015, then that BSWATR is the substituted BSWATR for the relevant eligible period for the person. 

• if there is more than one BSWATR applicable to another eligible period for the person during the period between 1 January 2004 and 31 January 2015, and the date of one of those BSWATRs is earlier than the relevant eligible period, then the earlier BSWATR is the substituted BSWATR for the person for the relevant eligible period;
• if there is more than one BSWATR applicable to the person during the period between 1 January 2004 and 31 January 2015, and those BSWATRs do not have a date that is earlier than the relevant eligible period, then the BSWATR that is closest to the relevant eligible period is the substituted BSWATR for the person for the relevant eligible period.

New subsection 3.08(4) contains what was in previous subsection 3.08(3).  No changes have been made to the content of that subsection.

Item 14 inserts new paragraphs 3.14(d) and (e).

Subsection 8(3) of the Act provides that the Minister must have regard to a number of principles when making rules for the purposes of working out the payment amount.  One of those principles is that the amount a person should receive should broadly reflect the amount that is 70% of the excess (if any) of a productivity-scored wage over an actual wage.  Among other things, subsection 8(5) of the Act allows for the “productivity-scored wage” to be worked out in accordance with the Rules.

Part 3 of Chapter 3 of the Rules provides for working out the productivity-scored wage and it contains four steps.  Relevantly, the fourth step, contained in section 3.14, involves working out the productivity-scored wage for each eligible period.  Currently, section 3.14 requires the wage to be worked out by having regard to the BSWATR that is applicable to any of the days in the eligible period, unless the person was paid a training wage.

In some instances, there is insufficient evidence to determine a person’s BSWATR, or the person’s BSWATR is otherwise not available. New paragraph 3.14(d) provides a mechanism to calculate a person’s productivity-scored wage for an eligible period where there is insufficient evidence available to determine the actual BSWATR for the person, but where there is a BSWATR applicable to the person for a different eligible period during the period 1 January 2004 and 31 January 2015.  In these circumstances, the productivity-scored wage is worked out by multiplying the hours worked, determined in accordance with section 3.07, and the person’s substituted productivity-scored wage determined in accordance with section 3.13. 

New paragraph 3.14(e) provides a mechanism to calculate a person’s productivity-scored wage for an eligible period where there is insufficient evidence available to determine the actual BSWATR for the person and there is no BSWATR applicable to the person for a different eligible period.  In these circumstances, the productivity-scored wage is worked out by multiplying the hours worked, determined in accordance with section 3.07, and the average productivity-scored wage specified in the applicable training wage determination made under Part 5.  Part 5 of the Rules provides a mechanism for the calculation of payment amounts for people who were paid a training wage while waiting for a BSWAT assessment.  Section 3.25 provides that the Secretary must determine the average BSWATR productivity-scored rate for an ADE for a financial year in accordance with that section. 

Item 15 substitutes subsection 3.22(1) with a new subsection.

Section 3.22 provides for making a training wage determination.  New subsection 3.22(1) clarifies that the Secretary may make a training wage determination which applies to an ADE, rather than any particular ADE, in a particular financial year. 

Item 16 inserts a new subsection 3.22(4)

New subsection 3.22(4) allows for the Secretary to decide not to make a training wage determination for an ADE in a particular financial year if the Secretary is not satisfied that there is sufficient evidence to make such a determination.  As described for item 1 of these amendments, in some instances there is no specific data for employees in an ADE for particular financial years that would allow the Secretary to make a training wage determination for that ADE for that particular financial year.  To address these issues, the new definition of applicable training wage determination (inserted by item 1), in conjunction with new subsection 3.22(4), allows for the next available, subsequent training wage determination for an ADE to be used where there is insufficient data to make a training wage determination for a particular financial year.  For example, if there is insufficient data to make a training wage determination for an ADE for 2004/05, but there is a training wage determination for that ADE for 2005/06, then that determination can be used for 2004/05. 

Item 17 substitutes section 3.23 with a new section 3.23.

Section 3.23 provides for when the Secretary must make a training wage determination.  New section 3.23 updates the cross-references in that section to correctly reflect that it applies to paragraphs 3.08(1)(b), 3.14(b) and (c).  In addition, it also now refers to paragraph 3.08(1)(c), as substituted by item 9, and recognises that the Secretary may not be required to make a training wage determination given the effect of new subsection 3.22(4) (inserted by item 16).  New paragraph 3.08(1)(c) provides that in some circumstances a person’s BSWATR assessed rate is the average BSWATR assessed rate determined under section 3.24, for the ADE in which the person was employed, during the relevant financial year.  Section 3.24 is contained in Part 5 of the Rules and it requires the Secretary is to determine the average BSWATR assessed rate for an ADE for a financial year by averaging amounts specified in that section.  In order to determine a person’s BSWATR assessed rate for the purposes of paragraph 3.08(1)(c), it will be necessary for the Secretary to make a training wage determination for the ADE at which the person worked.

Item 18, 19 and 20 inserts new text into paragraphs 3.24(a) and (b), 3.25(2)(a) and (b) and 3.25(3)(a) and (b) to clarify those paragraphs.

Under section 3.24, the Secretary is to determine the average BSWATR assessed rate for an ADE for a financial year by, among other things, averaging certain wages, for all employees at an ADE on particular dates.  Under section 3.25, the Secretary is to determine the average BSWATR productivity scored rate for an ADE for a financial year.  The Secretary is to do this by, among other things:

• working out the average hourly award rate by averaging the average hourly award rate shown in the applicable BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at certain dates; and
• working out the average BSWATR productivity score as shown in the BSWATR of all employees at the ADE whose wages were assessed with the BSWAT as at certain dates.

The amendments made by items 18, 19 and 20 clarify that when considering the average assessed wage, hourly award rates and the BSWATR productivity scores of employees at the ADE, a decision-maker is only required to have regard to the evidence that is available to them.  For example, there may be evidence of the wages of some employees at the ADE on the relevant day, but not for other employees.  In these circumstances, the average can be calculated based on the wages of employees whose evidence is available.

Item 21 updates the reference to the Legal Services Directions 2017.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018

This instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the legislative instrument

The Business Services Wage Assessment Tool Payment Scheme Act 2015 (the Act) establishes the Business Services Wage Assessment Tool Payment Scheme (the BSWAT payment scheme).  The BSWAT payment scheme is a scheme for making payments in relation to the use of the BSWAT.  A person is eligible for the BSWAT payment scheme if in the period starting 1 January 2004 and ending on 31 January 2015 the person:

• had an intellectual impairment; and
• was employed at an Australian Disability Enterprise (ADE); and
• was provided with employment support by the ADE; and
• was paid a training wage while waiting for a BSWAT assessment to be completed or alternatively, the minimum wage payable to the person was worked out using a BSWAT assessment.

If a person makes a valid application for the BSWAT payment scheme and a determination is made that the person is eligible for the scheme, then subsection 17(3) of the Act requires the Secretary to make a determination of the payment amount.  Subsection 8(1) of the Act provides that the payment amount for a person is worked out by a method prescribed by the Business Services Wage Assessment Tool Payment Scheme Rules 2015 (the Rules).

The Rules provide a framework for the operation of the BSWAT payment scheme.  They deal with matters such as eligibility, calculating the payment amount, acceptances, internal and external reviews, nominees, disclosure of protected information and legal and financial counselling services.

Chapter 3 of the Rules prescribes the method for calculating payment amounts for persons who are eligible for a payment under the BSWAT payment scheme.  Broadly, the payment amount is worked out by:

1. calculating the amount the person was actually paid by the ADE.  This is called a person’s “actual wage”;
2. working out what the person would have been paid had the wages been calculated only using the productivity-scored component of an applicable BSWAT assessment for the person.  This is called a person’s “productivity‑scored wage”; and
3. working out the difference between the two amounts at (1) and (2) and calculating the payment amount.  Indexation factors are then applied and the amount is multiplied by 0.7.  Further calculations are then made to account for taxation considerations.

In administering the BSWAT payment scheme, some difficulties have been identified when seeking to calculate a payment amount for persons who are eligible for payment under the scheme but where there is insufficient evidence, of the type prescribed by the Rules, to calculate a payment amount for such persons.

The purpose of the Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018 (the Amendment Rules) is to allow decision-makers to consider different evidence than what is currently prescribed.  The Amendment Rules will also allow for an alternative method for calculating a payment amount for a person where there is insufficient evidence to ascertain:

• the number of hours worked by the person at the ADE in a period where they are eligible for payment under the BSWAT payment scheme; or                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     
• the BSWAT Report (which records a BSWAT assessment) for the person in the relevant period.

The Amendment Rules also make minor amendments to the Rules to clarify the intent of some of the provisions.

The Amendment Rules promote the right to an effective remedy.

Human rights implications

Rights to an effective remedy

People with intellectual impairment who have previously had their wages assessed by the BSWAT may choose an effective remedy through a number of options:

• accepting an offer under the BSWAT payment scheme; or
• taking part in legal proceedings.

The establishment of the BSWAT payment scheme provides additional choice and control for people with disability.  The Rules operationalise the BSWAT payment scheme and provide participants with certainty on the method used to calculate the payment amount.  Individuals are able to consider an offer made through the BSWAT payment scheme and choose the option which they believe best suits their individual circumstances.

The Amendment Rules provide greater scope for affected persons to access an appropriate remedy under the BSWAT payment scheme as the evidence provisions are widened to allow for a payment to be made to a person in circumstances where it is clear the person is eligible for a payment under the BSWAT payment scheme but where there insufficient evidence to determine the amount of the offer that should be made to the person.

Conclusion

The Amendment Rules are compatible with human rights because they advance the protection of human rights.

The Hon. Dan Tehan MP

Minister for Social Services