Workers with intellectual disabilities class action

The action

Maurice Blackburn’s client Tyson Duval-Comrie commenced an action which alleged the use of the Business Services Wage Assessment Tool (BSWAT) discriminated against people with intellectual disabilities who work at Australia Disability Enterprises, in contravention of the Disability Discrimination Act 1992.  BSWAT is a tool used to determined pro-rata wages for people with a disability.

In 2012, in a case brought against the Commonwealth by two individual workers with intellectual disabilities, the Full Federal Court decided that using BSWAT to set the wages of intellectually disabled workers was discriminatory and contravened the Disability Discrimination Act 1992. The High Court refused the Commonwealth’s application for special leave to appeal in May 2013.

Nonetheless, workers with intellectual disabilities in ADEs have continued to be paid under BSWAT. The Maurice Blackburn class action sought an end to the discrimination, and compensation for those workers who have lost wages as a result of the discrimination.

The Settlement

In February 2016, Maurice Blackburn Lawyers formed an agreement to settle the class action with the Commonwealth.  In December 2016, the Federal Court approved the settlement.

Intellectually disabled Australian workers will be fairly compensated for the unlawful underpayments, thanks to an agreement Maurice Blackburn Lawyers reached on behalf of group members.

Part of agreement was to seek to change the Business Service Wage Assessment Tool (BSWAT) Payment Scheme Act 2015:

• to pay 70% of the compensation owed to employees
• manage the payments of compensation through the BSWAT payment scheme
• extend the deadlines under the BSWAT payment scheme to ensure more people are compensated.

Parliament amended the legislation in February 2016. 

What should I do?

Registration for the BSWAT Payment Scheme has now closed.

However, if you have any questions, we encourage you to contact the Department of Social Services by:

• visiting the government’s website
• phoning the government’s BSWAT Hotline on 1800 880 052
• emailing bswatpayments@dss.gov.au

Important: We also encourage class members who register for the BSWAT payment scheme to seek legal advice in relation to the amount to be paid by the BSWAT Scheme.  Maurice Blackburn cannot provide that advice, so we recommend you contact the AED Legal Centre on (03) 9639 4333.