People with disability working in supported employment are being legally paid less superannuation than the rest of the workforce due to outdated and contradictory workplace laws, an inequity for which advocates say there is “no excuse”.
Under the federal superannuation guarantee, companies must pay all adult employees a super contribution of 11% of their ordinary wage. But under the supported employment services award 2020, employees with disability working in supported employment are entitled to only 9.5%, or $15 a week, whichever is greater.
The lower rate of superannuation is on top of laws that already allow Australian disability enterprises (ADEs) to pay their staff vastly below the minimum wage, sometimes as low as $2.90 an hour. The national minimum wage is $23.23 an hour.
Supported employment, or ADEs, are programs in which people with disability work in a segregated environment under supervision. The award covers approximately 20,000 people.
ADEs calculate a wage for a person with a disability based on an assessment of their productivity and competencies, or by reference to what is called the special national minimum wage.
The last update to the superannuation rate for people with disability specified in the award was on 1 January 2021.
The superannuation guarantee has been updated three times since then, at 0.5% each time. Super rates under the guarantee are scheduled to continue increasing for the next two years until they reach 12% in 2025.
Guardian Australia has seen evidence that Orana, a major disability employment provider in South Australia with approximately 450 employees in supported employment, has been calculating superannuation for its employees with disabilities at the 9.5% rate based on the specification in the award. Supported employment roles at Orana include gardening and landscaping, customer service, industrial sewing, packing and assembly.
Orana has been approached for comment.
David Kirner from the Construction, Forestry and Maritime Employees Union in South Australia, said it was an example of how an outdated award was causing problems for people who were already marginalised and vulnerable.
Kirner said the likelihood of wage theft increased substantially when the award contained incorrect or outdated information.
“There’s been a royal commission into the rights of people with a disability but you still have a modern award that says you’ll still get 9.5% superannuation when everyone else gets 11% because nobody’s updated it since 2021,” Kirner said.
Before 2019, low-income workers with a disability under the supported employment services award received just 3% superannuation, or a minimum of $6 a week. A campaign from the United Workers’ Union resulted in the Fair Work Commission changing the rate to 9.5% – equivalent to the mainstream guarantee at the time – or $15 a week.
Catherine McAlpine, chief executive of Inclusion Australia, said the incongruity between the award and the national guarantee was the sort of inequity and oversight that people with disability had come to expect.
“There is absolutely no excuse to not pay people with an intellectual disability the same rate of superannuation as every other employee in the country,” McAlpine said.
“People with intellectual disability are very clear that they are not respected as employees and that lack of respect is reflected in the very poor wages that they are paid.”
In the final report of the disability royal commission, handed down in October last year, four of the seven commissioners recommended the phase-out of disability enterprises and elimination of subminimum wages for people with disability by 2034.
Inclusion Australia advocated to the commission for a non-segregated employment support system that gave people with disability ordinary award wages, access to all employment services, and a refocusing of disability enterprises.
“It’s really important that we make the changes to better wages carefully to make sure that people with really high support needs don’t lose either their existing job or the opportunity to be employed,” McAlpine said.
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