Business Services Wage Assessment Tool Payment Scheme Act 2015

Eligible workers: Persons with intellectual impairments who were employed in ADEs and had their wages assessed using BSWAT during the eligible period. Over 14,590 BSWAT-assessed persons were identified by the Department. The scheme's class was broader than the original representative proceeding (which had approximately 9,735 identified group members).

Group members in representative proceedings: Persons who were group members in the Duval-Comrie representative proceeding (VID 1367 of 2013) or related proceedings. Lodging an effective acceptance automatically removed the person from the representative proceeding class.

ADEs: Referred to in the eligibility criteria. On acceptance, claims against the relevant ADE (as well as against the Commonwealth) were released.

Secretary of the relevant department: Responsible for administering the scheme including managing applications, making determinations, making offers, and recovering debts.

Nominees: Persons who needed support to make decisions could have a nominee appointed to act for them.

Legal and financial advisers: Required to provide certificates confirming advice was given before a person could lodge an effective acceptance.

Applications (s 15): Applications had to be made between 1 July 2015 and 30 November 2017, in the approved form, lodged in the prescribed manner, and accompanied by required information and documents.

Registration (s 13): Persons had to register before 1 May 2017 to be able to make applications on or after 1 May 2017.

Information provision (ss 68-73): Persons required to provide further information by the Secretary must comply with notices within the specified period. Failure to comply (without reasonable excuse) is an offence carrying 30 penalty units.

Debt repayment (Division 4, Part 5): Persons who received overpayments, or who accepted a payment when an alternative amount existed, are liable to repay the amount as a debt to the Commonwealth (s 84).

Change of address (s 70): Persons who owe a debt to the Commonwealth must notify the Department within 14 days of any address change.

Privacy obligations (Division 3, Part 5): Officers and others who obtain protected information may only use or disclose it as permitted by the Act. Unauthorised access, use, or disclosure of protected information is a serious criminal offence.

Secretary: determinations (s 17): Must determine each application by deciding eligibility and, if eligible, the payment amount. The Secretary must offer payment if eligible (s 19) or refuse if not eligible or if the amount is nil.

Secretary: information requests (ss 68-71): May request further information from applicants, require information from any person relevant to determining applications, require information from debtors and creditors, and require information about debtors' whereabouts. All requests must be by written notice with a minimum 14-day response period.

Secretary: nominee appointment (Part 4): May appoint a nominee to act for a person in relation to the scheme, at the person's request or on the Secretary's own initiative where satisfied that the person requires support.

Minister: rules (s 8): May make rules specifying the method for calculating payment amounts, different methods for different circumstances, and other matters including evidence requirements and verification procedures.

External reviewer: On application for review after the Secretary's internal review, an external reviewer may determine the payment amount. A determination by an external reviewer is binding, with no further review right.

Non-compliance with information requirements (s 73): 30 penalty units. Reasonable excuse defence available.

Unauthorised access to protected information (s 76): Imprisonment for 2 years or 120 penalty units or both.

Unauthorised use or disclosure of protected information (s 77): Imprisonment for 2 years or 120 penalty units or both.

Soliciting disclosure of protected information (s 78): Imprisonment for 2 years or 120 penalty units or both.

Offering to supply protected information (s 79): Serious criminal offence.

Debt recovery (s 84 area): Amounts wrongly paid become debts to the Commonwealth recoverable through the courts or through payment arrangements.

Registration (s 13): Contact the Secretary before 1 May 2017. Those who applied before 1 May 2017 were automatically treated as registered.

Application (s 15): Made between 1 July 2015 and 30 November 2017.

Determination (s 17): Secretary determines eligibility and payment amount. Where further information is requested, determination may be deferred.

Offer (s 19): Secretary gives written offer specifying: amount; acceptance period (minimum 14 days from offer date); how to accept; right to apply for review; and warnings about sections 9 and 10.

Review (Division 4, Part 3): Applicant may apply for internal review of the determination. External review available if not satisfied with internal review outcome. On external review, the external reviewer's determination is final.

Acceptance (ss 35-39): Person must obtain legal advice certificate and financial counselling certificate, and lodge an effective acceptance within the acceptance period (or extended period if granted).

Payment (s 43): Secretary makes payment to the bank account nominated by the person.

Legal consequences on acceptance (ss 9, 10): Acceptance automatically removes the person from any relevant representative proceeding and operates as a full release of all related claims against the Commonwealth, the relevant ADE, and other persons.

Scheme closure: Applications could not be made after 30 November 2017. Offers could not be made after 31 August 2018 (except from reviews). No acceptance could be lodged after 31 December 2018.

Disability Discrimination Act 1992 (Cth): The scheme arose from findings that BSWAT involved unlawful discrimination under the DDA. The Full Court's decision in Nojin v Commonwealth held that use of BSWAT amounted to unlawful discrimination under section 15 of the DDA.

Federal Court of Australia Act 1976, Part IVA (representative proceedings): The Act specifically interacted with the Part IVA representative proceeding mechanism. Section 9(2) provided that an effective acceptance removed the person from the representative proceeding without needing to opt out under section 33J. Section 9(3) provided that doing acts under the BSWAT Act did not constitute taking steps in the representative proceeding.

Social Security (Administration) Act 1999 (Cth) s 202: The Secretary could obtain, record, use, or disclose information held in departmental records under this provision for the purposes of the BSWAT Act, without needing a written notice.

Constitution ss 51(xxiiiA) and (xxxix): The Act relied on these heads of power: the social services and benefits power and the incidental power.

Acceptance bars all related legal claims (s 10): On lodging an effective acceptance, the person releases and discharges the Commonwealth, the relevant ADE, and all other persons from all liability relating to BSWAT wage assessments, covering: unlawful discrimination; breach of any law; and any other conduct giving rise to liability. This is a complete and permanent release with no reservation of rights. Persons needed legal advice before accepting.

Legal advice and financial counselling certificates were mandatory for effective acceptance (ss 36, 37): Failure to obtain these certificates meant the acceptance was not effective and no payment could be made. The scheme built in these requirements specifically because many eligible workers had intellectual disabilities and required support to understand the legal consequences.

Alternative amounts excluded eligibility and registration: Persons who had already received a settlement or award related to BSWAT were excluded from the scheme entirely. Scheme payments could not be stacked on top of prior settlements.

The 30% discount reflected litigation risk: As explained in Duval-Comrie [2016] FCA 1523, the payment amount of 70% of the excess (rather than 100%) reflected a 30% discount for the risks that the Commonwealth would have succeeded on its defences in the litigation.

Indexation factors reflect historical wage movements: The indexation factors in section 8A (ranging from 1.014 to 1.044) were applied year by year to compound the eligible wage gap over the period from the first eligible day to 2014-2015. The method is described in section 8A's four-step method statement.

All scheme deadlines have passed: The scheme is closed. No new applications, registrations, or acceptances can be made. The Act's ongoing significance is for: debt recovery from persons who received overpayments; privacy obligations regarding information obtained; and the continuing legal effect of releases given by accepting persons.

Eligible worker's payment calculation (simplified): A worker with intellectual impairment was employed at an ADE from 2006 to 2012. During that time, their minimum wage was set using BSWAT at $8 per hour when the productivity-only component would have yielded $11 per hour. The productivity-scored wage exceeds the actual wage. The excess, indexed over the years, is calculated using the section 8A method. The payment amount is 70% of the indexed excess, grossed up for tax.

Alternative amount exclusion: A worker who had separately settled a claim against their ADE in 2014 for $15,000 related to BSWAT wage assessments has an 'alternative amount'. They cannot register for the scheme or make an application. They are excluded from eligibility.

Legal release on acceptance: A worker accepts the scheme's offer by lodging an effective acceptance in August 2018. By force of section 10, at the moment of lodging the acceptance, the worker releases the Commonwealth and the ADE from all liability for BSWAT-related discrimination, breach of law, and other claims. The worker cannot later bring a separate action for additional compensation.

Representative proceeding consequences: At the time of acceptance, the worker was a group member in the Duval-Comrie representative proceeding. By force of section 9, they immediately ceased to be a group member on lodging the acceptance, without needing to formally opt out.