Down Syndrome Australia 18th June 2015:
On June 15 the Federal Parliament passed new legislation that will deny people with intellectual disability the right to pursue back pay against the Commonwealth through the courts.
The Government’s Business Services Wage Assessment Tool (BSWAT) Bill will see people with disability prevented from exercising their right to pursue to back pay if they choose to be part of the Government’s Scheme.
The Government’s legislation was passed with the support of a number of the independent Senators.
Both the Opposition and the Greens attempted to, unsuccessfully, amend the legislation.
These amendments would have enabled those people who choose to participate in the Government’s BSWAT scheme to also continue to participate in a class action that protects their common law rights.
For months, people with disability have been calling on the Government to accept Labor’s amendments. Unfortunately the Government has ignored their pleas.
The BSWAT is one of several different tools used to assess the wages of people who work in Australian Disability Enterprises (ADE’s).
The BSWAT was found to be discriminatory against people with intellectual disability by both the Federal and High Courts of Australia.
Common sense prevails with passage of BSWAT payment scheme
Senator Mitch Fifield, Assistant Minister for Social Services, 16th June 2015 (media release)
Tonight common sense prevailed, with the successful passage of the Business Services Wage Assessment Tool (BSWAT) payment scheme Bills through the Senate.
The Coalition Government has persevered to deliver a BSWAT payment scheme that provides certainty for people with disability working in Australian Disability Enterprises (ADEs), their families and carers, as well as their employers.
The scheme will provide a fast and efficient one-off payment to employees of ADEs who have been paid a pro-rata wage assessed using the BSWAT.
Representative action in relation to BSWAT continues, and we respect the right of people with disability to pursue this avenue, but recognise this is a process with an uncertain outcome ...Senate decision may have jeopardised pay case for workers with a disability
Bridie Jabour, The Guardian, 16th June 2015
... The workers are in the process of undertaking a class action with the law firm Maurice Blackburn but on Monday the Senate passed legislation allowing the government to offer the workers up to half of what they are owed. The condition is that they drop any claims to sue.
The head of employment law at Maurice Blackburn, Josh Bornstein, said the workers and their parents had been the subject of a “scare campaign” to have them take up to the offer.
The government has not officially revealed the potential total of payments but Bornstein said one of the central claimants had been underpaid by $25,000, so he would be offered up to $12,500.
“It’s [the legislation] designed to curtail the class action ... my gut feeling is that there’ll be a lot of pressure and persuasion applied to the workers with the intellectual disabilities to sign off,” he told Guardian Australia ...
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