Workers with intellectual disabilities urged to register for BSWAT backpay and compensation

Australian workers with intellectual disabilities could be eligible to receive backpay for the unlawfully discriminatory wages, thanks to an agreement Maurice Blackburn Lawyers reached on behalf of about 10,000 workers in a class action against the Federal Government. But those eligible must register for the payment scheme before the end of April 2017 to receive any entitlements.

Class action launched

The pro bono class action, which was run in conjunction with the AED Legal Centre, was launched against the Commonwealth of Australia in the Federal Court and alleged that disabled workers working in Australian Disability Enterprises were being unfairly discriminated against.

Lead plaintiff Tyson Duval-Comrie claimed the use of the Business Services Wage Assessment Tool (BSWAT) to determine pro-rata wages for people working at Australian Disability Enterprises discriminated against people with intellectual disabilities, in contravention of the Disability Discrimination Act 1992.

The Full Federal Court decided in a 2012 case that was brought against the Commonwealth by two individual workers with intellectual disabilities that using BSWAT to set the wages of intellectually disabled workers was discriminatory and contravened the Act.

Settlement reached

Maurice Blackburn’s class action sought an end to the discrimination, and compensation for those workers who lost wages as a result of the discrimination. An agreement estimated to be worth more than $100 million was subsequently reached between the parties, which was approved by the Federal Court in December 2016.

Affected workers will receive an amount directly from the government in a scheme administered by the government – provided they register before April 30 2017.

How do workers register?

Workers can register for the BSWAT Payment Scheme by:

A person can apply for the scheme on behalf of a deceased person who would otherwise have been eligible for the scheme.

Find out more information on the Department of Social Services website

TOPIC: Class actions

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Kelly Thomas

Maurice Blackburn Melbourne
Kelly Thomas is an Associate in Maurice Blackburn's Employment and Industrial Law Section, based in Melbourne. She is listed by the prestigious Doyles Guide as part of the only first tier law firm for employee & trade union representation in Victoria in 2017. Kelly is a tenacious lawyer who takes a commercial and pragmatic approach to employment issues and seeks to resolve clients' matters quickly and confidentially. She understands that, for her clients, preserving their reputation is paramount and that trouble at work can take a toll on people’s health. Kelly assists clients with all types of employment and industrial law matters, such as claims in relation to redundancy, unfair dismissal, general protections contraventions (also known as adverse action), and discrimination. She also gives practical advice to employees about employment contract issues, such as restraints of trade and non-compete clauses, disciplinary matters, and protection of interests and reputation when employment is coming to an end.  She has a particular interest in making sure employees understand their rights and the risks before starting employment. Kelly represents a wide variety of people, including senior managers, academics, doctors, former state ministers, teachers, public sector employees, financial advisors, and sales people. She has experience with many different sized companies, and all kinds of employers. For example, Kelly is currently representing a young woman who was sexually harassed and discriminated against in her workplace. Kelly practices in State and Federal courts, and industrial tribunals including the Fair Work Commission. She has practiced in Queensland, the Northern Territory and Victoria. Kelly regularly presents on employment issues in relation to workplace bullying, harassment and redundancy. She comments on television, radio and in news on employment and industrial law issues, and has been published in the Australian Financial Review regarding the importance of senior executives reviewing employment contracts before signing on the dotted line. Federal Member of Parliament Terri Butler described Kelly as “a very talented solicitor” recently in Parliament, debating the passage of legislation that will provide backpay for many thousands of workers with an intellectual disability. Before joining Maurice Blackburn, Kelly was an associate to a Commissioner at (then) Fair Work Australia. In addition to her work at Maurice Blackburn, Kelly currently sits on the board of a community transport organisation. Kelly is currently on parental leave. Memberships & associations Law Institute of Victoria member ...

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