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Business Services Wage Assessment Tool Payment Scheme Bill 2014

Part 2 Key elements of BSWAT payment scheme

   

5   Simplified outline of this Part

The following key elements of the BSWAT payment scheme are set out in this Part:

       (a)     who is eligible to be offered a payment;

      (b)     how much will be offered to an eligible person;

       (c)     the legal consequences if the person accepts the offer.

Other important elements of the scheme (such as the need to register and apply for a payment under the scheme before the deadlines) are set out in Part 3.

6   Eligibility

Eligibility

             (1)  A person is eligible for the BSWAT payment scheme if the person meets the conditions in subsections (2), (3) and (4).

Eligible day

             (2)  The person meets the condition in this subsection if there is at least one day for the person in the period starting on 1 January 2004 and ending on 28 May 2014 in respect of which:

                     (a)  the person had an intellectual impairment; and

                     (b)  the person was employed by an Australian Disability Enterprise; and

                     (c)  the person was provided with employment support by the Australian Disability Enterprise; and

                     (d)  either:

                              (i)  the person was paid a training wage while waiting for a BSWAT assessment to be completed; or

                             (ii)  the minimum wage payable to the person was worked out using a BSWAT assessment of the person (for this purpose, it does not matter if the person was actually paid a higher wage).

Any such day is an eligible day for the person.

Ongoing daily support in the workplace

             (3)  The person meets the condition in this subsection if the person required ongoing daily support in the workplace in order to maintain the person’s employment in the Australian Disability Enterprise.

No alternative amount

             (4)  The person meets the condition in this subsection if there is no alternative amount for the person.

7   Definition of intellectual impairment

                   A person has an intellectual impairment if:

                     (a)  the person has at least one of the following impairments:

                              (i)  an intellectual disability;

                             (ii)  autism spectrum disorder;

                            (iii)  dementia;

                            (iv)  impaired intellectual functioning as a consequence of an acquired brain injury; and

                     (b)  any conditions prescribed by the rules are satisfied.

8   Payment amount

             (1)  The payment amount for a person is the amount worked out for the person by a method prescribed by the rules.

             (2)  The rules may prescribe different methods for different circumstances.

             (3)  In making rules for the purposes of this section, the Minister must have regard to the following principles:

                     (a)  the amount a person should receive, if the person accepts an offer, should broadly reflect the amount that is 50% of the excess (if any) of a productivity-scored wage over an actual wage;

                     (b)  to ensure that the person retains that amount after tax, the amount should be increased to take account of expected tax;

                     (c)  the amount should be nil if a person’s productivity-scored wage is the same or less than the person’s actual wage.

             (4)  Despite subsection (3), the rules may have the following effect:

                     (a)  if the amount worked out for a person is less than $1—that the payment amount for the person is nil;

                     (b)  if the amount worked out for the person is at least $1 but less than $100—that the amount the person should retain after tax is $100.

             (5)  In this Act:

actual wage means a wage, worked out in accordance with the rules, that a person was paid in respect of an eligible day.

productivity-scored wage means a wage, worked out in accordance with the rules, that a person could reasonably have been expected to have been paid in respect of an eligible day, had the productivity component of a BSWAT assessment comprised the whole of the BSWAT assessment.

9   Effect on representative proceedings

             (1)  If:

                     (a)  a person lodges an effective acceptance; and

                     (b)  immediately before lodging the acceptance, the person was a group member in relation to a relevant representative proceeding;

then, at the time the acceptance is lodged and by force of this section, the person ceases to be a group member in relation to the relevant representative proceeding.

             (2)  Subsection (1) has effect despite the provisions of Part IVA of the Federal Court of Australia Act 1976 . In particular, a group member does not need to opt out of the proceeding in accordance with section 33J of that Act in order to cease to be a group member.

             (3)  For the purposes of section 33F of the Federal Court of Australia Act 1976 , the lodging of an effective acceptance by a person or the doing of any other act under this Act or the rules does not constitute the taking of a step in a representative proceeding or conducting part of the proceeding.

             (4)  Any of the following is a relevant representative proceeding :

                     (a)  the representative proceeding commenced by originating application in the Federal Court on 20 December 2013 as proceeding number VID 1367 of 2013;

                     (b)  any other representative proceeding in the Federal Court:

                              (i)  in which damages or compensation are claimed in connection with the use of a BSWAT assessment to work out a minimum wage payable to a person; or

                             (ii)  in relation to which a person may be a group member on the same, or substantially the same, basis as the conditions in section 6;

                     (c)  any appeal, application for leave to appeal or application for special leave to appeal from any judgment in a proceeding referred to in paragraph (a) or (b);

                     (d)  any appeal from any judgment in an appeal referred to in paragraph (c).

10   Effect on certain claims

             (1)  If a person lodges an effective acceptance, then, at the time the person lodges the acceptance and by force of this section:

                     (a)  the person releases and forever discharges the Commonwealth, each Australian Disability Enterprise and all other persons from all liability in relation to any matter referred to in subsection (2); and

                     (b)  the person cannot, whether as an individual, a representative party or a member of a group, bring or continue any claim against the Commonwealth or any other person in relation to any matter referred to in subsection (2).

             (2)  The matters are the following, to the extent to which they relate to the use of a BSWAT assessment to work out a minimum wage payable to a person:

                     (a)  unlawful discrimination;

                     (b)  a contravention or breach of, or failure to comply with, a law, whether written or unwritten, of the Commonwealth, a State or a Territory;

                     (c)  any other conduct or failure on the part of the Commonwealth, an Australian Disability Enterprise or any other person, that might give rise to a liability to the person.

11   Evidence of eligibility

                   The rules may prescribe matters relating to the evidence needed to do either or both of the following:

                     (a)  establish a person’s eligibility under section 6;

                     (b)  work out the amount of the payment to be offered to a person.