Australia: Wage assessment tools for Australian Disability Enterprises (ADEs) and supported employees

Last Updated: 29 September 2012
Article by Sarah Hedger

In brief - No clear framework to decide which wage assessment tool an ADE must use in assessing employee wages

This article reviews the wage assessment tools available to ADEs to assess capacity of disabled employees and offers guidance to employers in adhering to best practice in supported employment contracts.

Role of ADEs in the Australian workforce

ADEs are commercial entities that assist people with moderate to severe disability who require considerable ongoing support in order to maintain their employment.

ADEs are funded by the Department of Families, Housing, Community Services and Indigenous Affairs to provide what is known as "supported employment". This is distinct from disabled employees who are employed by general employers in the open employment market.

A number of ADEs and their employees are covered by the Supported Employment Services Modern Award 2010 (SES award), which provides criteria to assist employers in assessing the type and level of work that their employees are capable of performing. The SES award provides for levels of employment which are graded with different standard pay rates relevant to each level.

Where a disabled employee is assessed by an ADE as being unable to achieve a similar productivity level as an average worker for their grading level, the SES award allows their wage to be determined as a percentage of the applicable base pay rate. This is performed through the use of one of 30 wage assessment tools.

Wage assessment tools — when to use them

The type of assessment tool an ADE must use in assessing employee wages is not specified. Instead, ADEs are able to choose their preferred tool from an approved list contained in the SES Award. It is therefore important for ADEs to have regard to the fact that some tools assess employee productivity, some are based on competency and others use a hybrid of these two methods.

Two examples of the most commonly used tools within the supported employment sector are the Business Services Wage Assessment Tool (BSWAT) and the Supported Wage System (SWS).

The Business Services Wage Assessment Tool

This hybrid tool assesses both the productivity and competency levels of employees. The two components are evaluated individually, then combined to determine an overall wage for the individual based upon the minimum rate of pay for the relevant modern award grading level. (See Guide to Good Practice Wage Determination, FaHCSIA 2001; Business services wage tool, CRS Australia Department of Human Services, 2011.)

The competency component includes a series of questions which are used to determine the employee's ability to understand and respond to workplace scenarios. The productivity component compares the employee's output with an industry standard illustrative of the expected level of output required in order for an individual to receive the full rate of pay for their grading level.

The Supported Wage System

Unlike the BSWAT, the SWS focuses on a productivity based assessment only. The SWS uses a set of "basic performance standards" derived from the abilities of non-disabled workers and assesses disabled worker productivity levels based upon their performance of the same duties in the workplace (See Guide to Good Practice Wage Determination, FaCSIA 2001; Supported Wage System Handbook, Department of Education, Employment and Workplace Relations, March 2010).

The process involves creating a list of tasks for each disabled employee and assessing their ability to perform those tasks against time-weighted standards set for each.

Implications of wage assessment tools

The result of using a tool is that the disabled employee will then receive a percentage of the relevant hourly rate for their grading level depending on their assessed capacity and/or productivity output. In some cases, after assessment an employee may receive as little as $2 per hour, depending upon their determined productivity percentage.

That said, a large portion of supported employees working in ADEs are on some form of governmental support, such as a Disability Support Pension and receive additional benefits relating to that pension (For more information see Australian Government Disability Services Census Report 2011.)

Nojin case - ADEs succeed in defending use of the BSWAT

In 2011, the Federal Court of Australia heard the case of Nojin v Commonwealth of Australia [2011] FCA 1066. A claim was brought against two separate ADEs on behalf of their respective intellectually disabled employees.

In Nojin it was argued that the requirements and conditions of the BSWAT used to assess the employee's work capabilities discriminated against people with intellectual disabilities, as they are likely to have greater difficulty satisfying the requirements of the competency based assessment than persons whose disabilities are not intellectually based.

The judge ultimately dismissed the case, as it was found that by using the BSWAT tool, the ADEs in question did not impose any unreasonable requirement or condition on the applicants within the definition of section 6(1)(b) of the Disability Discrimination Act 1992 (DDA).

Although the ADEs were successful in defending the matter, the case brought negative publicity for the enterprises involved.

Five guidelines for employers applying wage assessment tools

To minimise the potential of being perceived to be unfair, below are some useful recommendations for ADEs to consider before applying a wage assessment tool.

1. Ensure a wage adjustment is necessary

ADEs should ensure that their disabled employees have been allocated to the appropriate grading level and it must be clear that the disabled person is unable to achieve full productive capacity before a wage assessment tool is to be applied. (Supported Wage System Handbook, Department of Education, Employment and Workplace Relations, March 2010).

An assessment tool should not automatically be applied, nor should a lower grading level be determined simply because the employee has a disability.

2. Ensure the industrial award permits the use of a tool

In general, wage assessment tools are to be considered where a new employee is to be hired. ADEs should consult their employee's relevant modern award before selecting a tool and undertaking any wage assessment to ensure it is permissible in the circumstances.

3. Comply with maximum review time periods

Most tools have a set period in which the employee's assessed wage level must be reviewed. Failure to review an employee's rates of wage on a regular and systematic basis may expose an organisation to potential discrimination allegations.

The type of tool chosen by the ADE and the employee's applicable modern award will govern how often the review must take place. An employee assessed under the BSWAT, for example, must have their wage reviewed every three years, or possibly earlier where the employee's circumstances have changed, resulting in a significant and permanent difference in their performance (Business services wage tool, CRS Australia Department of Human Services, 2011). The SWS, in contrast, requires an employee's productivity to be reviewed every 12 months.

The review process does not necessarily mean that there will be a change in the employee's wages. It may result in no change at all. The relevant modern award should be consulted for provisions relating to reductions in wages if an employee's capacity level is assessed as being lower than that previously determined.

4. Transparency — keep records of the application of wage assessment tools and review process

Any wage assessment made should be clearly documented and a copy provided to the employee and/or the employee's representative. Similarly, when employing any new disabled employee, ADEs should consider providing a detailed information pack regarding the wage assessment process to the individual so that they are aware in advance of the potential for their pay rate to be reduced.

The pack should also clearly identify other independent information sources regarding wage assessment to reduce the potential risk of the employee later claiming they were provided with insufficient information about the process.

5. Consider the application of disability legislation

ADEs should ensure they keep abreast of the relevant disability discrimination legislation and guidelines. The DDA requires an employer to attempt to make adjustments (where reasonable) to the duties of an employee prior to reducing the wages.

For example, an employer might be obliged to insert a ramp for a wheelchair-bound individual. Without such a modification the employee could be deprived of their ability to reach a higher capacity level grading.

Disability enterprises need more than good intentions

In an increasingly litigious age, ADEs need to do their utmost to avoid having legal action brought against them by employees, former employees and their advocates out of the belief that the ADE has discriminated against a person on the basis of their disability.

Even a case which has little merit can be expensive to defend. Furthermore, the negative publicity generated even by an unsuccessful claim can do enormous and long-term damage to a disability employer's reputation.

Keeping up to date with relevant legislation, complying meticulously with legal requirements and ensuring that employees are fully informed in advance of the wage assessment process provides the best safeguard against claims from employees who believe that they have been treated unfairly.

More information regarding supported employment can be found at Department of Families, Housing, Community Services and Indigenous Affairs and Australian Disability Enterprises.

Sam Ingui
& Sarah Hedger
Workplace relations
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Sarah Hedger
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.