The Fair Work Commission has drafted changes to outdated laws that allow people with disability working in supported employment to be paid a lower rate of superannuation than the rest of the workforce.
The changes have been put forward as part of a sweeping review into the superannuation clauses in all modern awards to ensure they reflect the current requirements of superannuation law.
Guardian Australia revealed on Wednesday that people with disability working in supported employment, or Australian disability enterprises (ADEs), are being legally paid 9.5% superannuation while the rest of the workforce receives at least 11%.
The lower rate of superannuation is on top of laws that allow ADEs to pay their staff a fraction of the minimum wage, based on an assessment of their productivity, or by reference to what is called the special national minimum wage. That can be as low as $2.90 an hour. The national minimum wage is $23.23 an hour.
The relevant section of the Supported Employment Services Award 2020, which covers approximately 20,000 people, was last updated on 1 January 2021. It states that employees with disability working in supported employment are entitled to a super contribution of 9.5%, or $15 a week, whichever is greater.
The national 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.
Before 2019, low-income workers with a disability under the 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.
The new proposed change to the award would alter the wording of the carve-out to refer directly to the clause covering super for all other employees, which currently refers to the superannuation guarantee. The minimum rate of $15 would remain fixed.
The change was suggested in a submission to the commission by the Australian Chamber of Commerce and Industry and formally drafted by the full bench of the Fair Work Commission. It was circulated just before Christmas.
Advocacy organisation Inclusion Australia slammed the inequitable rate of superannuation payments this week, with the chief executive, Catherine McAlpine, saying there was “absolutely no excuse” for the discrepancy. The Construction, Forestry and Maritime Employees Union’s David Kirner said the union was concerned the outdated information in the award was causing problems for workers and increasing the likelihood of wage theft.
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.
On Wednesday, McAlpine described the subminimum wages as demonstrating “lack of respect” for workers with disabilities.
The federal government on Thursday released a new national plan for supported employment that formally acknowledged people with disability’s human rights but failed to substantively address the issue of subminimum wages, with advocates labelling the omission “disappointing”.
A spokesperson for the Fair Work Commission said it was not currently conducting a review into the wage structure of people with a disability in supported employment, but that any eligible party with an interest in the award could make an application to vary the award at any time.
The commission is taking submissions on the proposed changes to superannuation across the awards under review until 25 January.
