BSWAT is a ‘hybrid tool’ used to measure workers’ competency and productivity to determine relative rates of pay for workers with disability.
The Federal Court decided that BSWAT discriminated against people with an intellectual disability and was unlawful.
On 21 December 2012 the Federal Court handed down to related decisions regarding Mr Michael Nojin and Mr Gordon Prior who both worked in an Australian Disability Enterprise. Their wages were determined using BSWAT and they claimed this tool was discriminatory due to the differentiation of outcomes between people with an intellectual disability and those without.
Mr Nojin has cerebral palsy, epilepsy and a moderate intellectual disability. After a valuation of his work under BSWAT, his wage was $1.85 per hour. The Federal Court found that the BSWAT was ‘skewed against intellectually disabled workers’ and that criticism of it was ‘compelling’. It was decided that BASWAT was a mechanism that unfairly discounted the wages of intellectually disabled people and was designed to produce poor wage outcomes for these workers.
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