Business Services Wage Assessment Tool Payment Scheme Rules 2015 (Cth)

Business Services Wage Assessment Tool Payment Scheme Rules 2015 made under section 102 of the Business Services Wage Assessment Tool Payment Scheme Act 2015 Compilation No. 3 Compilation date: 21 April 2018 Includes amendments up to: Business Services Wage Assessment Tool Payment Scheme Amendment Rules 2018 – F2018L00499 Prepared by the Office of Parliamentary Counsel, Canberra About this compilation This compilation This is a compilation of the Business Services Wage Assessment Tool Payment Scheme Rules 2015 that shows the text of the law as amended and in force on 21 April 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self-repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Chapter 1— General provisions 1 Part 1— Preliminary 1 1.01 Name of rules 1 1.02 Commencement 1 Part 2— Interpretation 1 1.03 Definitions 1 1.04 Reference to things being done orally or in writing 2 1.05 Words relating to legal practices 3 Chapter 2— Eligibility and applications 4 Part 1— Eligibility 4 2.01 Evidence of eligibility—intellectual impairment 4 Part 2— Applications 4 2.02 Lodging applications 4 Chapter 3— Calculating the payment amount 5 Part 1— Outline and general concepts 5 3.01 Simplified outline 5 3.02 What is an eligible financial year and eligible period? 5 3.03 What happens if an eligible period straddles two eligible financial years? 6 3.04 Decimal places 6 Part 2— Working out the actual wage 6 3.05 Actual wage to be worked out in accordance with this Part 6 3.06 Step 1—Determine the person's gross pay for each eligible period 6 3.07 Step 2—Determine the number of hours the person worked in each eligible period 7 3.08 Step 3—Determine the BSWATR assessed rate for each eligible period 8 3.09 Step 4—Work out the person's actual wage for each eligible period 9 Part 3— Working out the productivity-scored wage 10 3.10 How to work out a person's productivity-scored wage 10 3.11 Step 1—Determine the BSWATR award rate 10 3.12 Step 2—Determine the BSWATR productivity component percentage for each eligible period 10 3.13 Step 3—Work out the person's productivity-scored rate for the eligible period 10 3.14 Step 4—Work out the person's productivity-scored wage for each eligible period 10 Part 4— Working out the payment amount 12 3.15 Payment amount to be worked out in accordance with this Part 12 3.16 Step 1—Determine the excess amount for each eligible period 12 3.17 Step 2—Determine the excess amount for each eligible financial year 12 3.18 Step 3—Index the amount for each eligible financial year to calculate the total excess amount 12 3.19 Step 4—Work out the payment amount 12 3.20 Calculating the amount on account of tax 13 Part 5— Training wage determinations 14 3.21 Purpose 14 3.22 Making a training wage determination 14 3.23 When must the Secretary make a training wage determination 14 3.24 Average BSWATR assessed rate 14 3.25 Average BSWATR productivity-scored rate 15 Chapter 4— Extensions of time and acceptance 16 4.01 Extensions of time for acceptance period and review period 16 4.02 Lodging an acceptance 16 Chapter 5— Internal review 17 5.01 Applications for internal review 17 5.02 Withdrawal of application for internal review 17 Chapter 6— External review 18 Part 1— Applications and withdrawals 18 6.01 Application for external review 18 6.02 Withdrawal of application for external review 18 Part 2— Remuneration of external reviewers 18 6.03 Remuneration payable to external reviewers 18 6.04 Where the external reviewer has a Commonwealth rate 18 6.05 Where the external reviewer does not have a Commonwealth rate 18 6.06 Hourly and daily rates 19 6.07 Rates are inclusive of GST 19 Part 3— External review process 19 6.08 Requirements for external review 19 Chapter 7— Nominees 20 Part 1— Functions and responsibilities of nominees 20 7.01 Modification of duty in relation to participants who cannot formulate preferences 20 7.02 Other duties 20 Part 2— Appointment and cancellation or suspension of appointment 21 7.03 Persons who must not be appointed as nominees 21 7.04 Nominee declaration 22 7.05 Criteria and matters for considering appointment 22 7.06 Requirement to consult 23 7.07 Cancellation or suspension of appointment of a nominee 23 Part 3— Review of certain decisions about nominees 24 7.08 Applications for review 24 7.09 Withdrawal of application for review 24 Chapter 8— Disclosure of protected information 25 Part 1— Purpose and outline 25 8.01 Purpose of this Chapter 25 Part 2— Rules for the purposes of making public interest certificates 25 8.02 When a public interest certificate may be given 25 8.03 Secretary must consider disclosure principles 25 Part 3— Rules for the purposes of disclosures to other agencies 26 8.04 When disclosures may be made to other agencies 26 Chapter 9— Legal and financial counselling services 28 Part 1— General 28 9.01 Purpose and simplified outline of this Chapter 28 9.02 Financial counsellors 28 9.03 Meaning of eligible adviser 28 Part 2— Publication scheme 29 9.04 Secretary to establish register of eligible advisers 29 9.05 Eligible advisers may apply to be included in register 29 9.06 Removal of eligible advisers from the register 29 Part 3— Payments for services provided by an eligible adviser 29 9.07 Eligible adviser may make a claim for payment 29 9.08 Maximum amount of a claim 29 9.09 Secretary to decide claim 30 Chapter 10— Deceased persons 31 10.01 Purpose of this Chapter 31 10.02 Making an application to be a legal personal representative 31 10.03 Secretary may determine that a person is a legal personal representative 31 10.04 More than one LPR applicant for a deceased person 32 10.05 Cancellation of determination 32 10.06 One approved legal personal representative 32 10.07 Effect of making a payment 33 Endnotes 34 Endnote 1—About the endnotes 34 Endnote 2—Abbreviation key 35 Endnote 3—Legislation history 36 Endnote 4—Amendment history 37 EDITORIAL CHANGES 39 1. General provisions 1. Preliminary o - 1. Name of rules These rules are the Business Services Wage Assessment Tool Payment Scheme Rules 2015. * + o - 1. Commencement These rules commence on the day after they are registered. * 1. Interpretation o - 1. Definitions In these rules: Act means the Business Services Wage Assessment Tool Payment Scheme Act 2015. ADE means Australian Disability Enterprise. applicable BSWATR—see subsection 3.08(2). applicable training wage determination means: if a training wage determination has been made under subsection 3.22(1) for an ADE in the relevant financial year—that training wage determination; if the Secretary decides under subsection 3.22(4) not to make a training wage determination for an ADE in a particular financial year and there is a training wage determination for that ADE in a subsequent financial year—the training wage determination for the next available subsequent financial year; if the Secretary decides under subsection 3.22(4) not to make a training wage determination for an ADE in a particular financial year and there is no training wage determination made for that ADE in a subsequent financial year—the most recent training wage determination made for that ADE. approved legal personal representative—see subsection 10.03(4). average BSWATR assessed rate—see section 3.24. BSWATR means a Business Services Wage Assessment Tool Report which records a person's BSWAT assessment. child welfare agency—see subsection 8.03(2). conflict of interest—see subsection 7.02(12). court-appointed decision-maker: a person is a court-appointed decision-maker in relation to a participant if the person, under a law of the Commonwealth, a State or a Territory: has guardianship of the participant; or is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee. eligible financial year—see section 3.02. eligible period—see section 3.02. financial counselling certificate means a certificate that complies with section 37 of the Act. financial year means a period of 12 months starting on 1 July. legal advice certificate means a certificate that complies with section 36 of the Act. participant-appointed decision-maker: a person is a participant-appointed decision-maker in relation to a participant if the participant has entered into a formal arrangement with the person under which the person is able to make a decision on the participant's behalf (for example, an enduring power of attorney, an advance health directive or appointment as an enduring guardian under State or Territory law). recipient agency—see subsection 8.04(2). relative—see subsection 7.03(3). Note: Pursuant to paragraph 13(1)(b) of the Legislative Instruments Act 2003, expressions used in these rules have the same meaning as in the Act. For example, the following words are defined by the Act: Australian Disability Enterprise BSWAT BSWAT assessment centrelink program eligible day legal practitioner nominee spouse of a person includes a de facto partner of the person. training wage determination means a determination made under Part 5 of Chapter 3. In these rules, a reference to a person's centrelink data means data about that person held for the purposes of a centrelink program. In these rules, a reference to a person's CRS data means data held about that person for the purposes of administration of the BSWAT by CRS Australia. * + o - 1. Reference to things being done orally or in writing A reference in these rules to something being done orally or in writing means that the thing may be done: by telephone by calling the Department on 1800 799 515; by email to the Department at BSWATPayments@dss.gov.au; or by post by writing to the Department at the following address: Department of Social Services BSWAT Payment Scheme GPO Box 9820 Hobart TAS 7001 * + o - 1. Words relating to legal practices In these rules, the phrases law firm, multidisciplinary partnership, and incorporated legal practice have the meaning given to them by the Legal Profession Uniform Law which is Schedule 1 to the Legal Profession Uniform Law Application Act 2014 of Victoria. 1. Eligibility and applications 1. Eligibility o - 1. Evidence of eligibility—intellectual impairment The evidence needed to establish that a person met the condition in paragraph 6(2)(a) of the Act for any eligible day is: if the person was in receipt of a disability support pension because of an intellectual impairment between 1 January 2004 and 31 January 2015—evidence that the person received a disability support pension because of an intellectual impairment on at least one day between those dates; or if the person was not in receipt of a disability support pension because of an intellectual impairment on any day between 1 January 2004 and 31 January 2015: information contained in the person's centrelink data which confirms that the person has an intellectual impairment; or a document signed by a medical practitioner, clinical psychologist or educational institution which certifies that, in the opinion of the author, the person has an intellectual impairment. Note: The definition of intellectual impairment is in section 7 of the Act and includes an intellectual disability, autism spectrum disorder, dementia and impaired intellectual functioning as a consequence of an acquired brain injury. * 1. Applications o - 1. Lodging applications For paragraph 15(2)(b) of the Act, a person may lodge an application for the BSWAT payment scheme: by posting the application to the Department at the address specified in paragraph 1.04(c); or electronically in the manner notified by the Department on its website. 1. Calculating the payment amount 1. Outline and general concepts o - 1. Simplified outline The following is a simplified outline of this Chapter. This Chapter sets out how to calculate the payment amount for a person. It provides both the method and the evidence required to calculate a payment amount. First, work out the amount the person was actually paid by an ADE using the steps in Part 2. Then, work out the amount the person would have been paid had the wage been calculated using only the productivity-scored component of the BSWAT using the steps in Part 3. Finally, work out the difference between the two amounts and apply the steps in Part 4 to calculate the payment amount. The steps in Part 4 also deal with taxation.