In a move towards rectifying outdated legislation, the Fair Work Commission has drafted amendments aimed at eliminating the disparity in superannuation payments for individuals with disabilities engaged in supported employment. The proposed changes are part of a comprehensive review of superannuation clauses across modern awards to align them with current superannuation laws.
As revealed by Guardian Australia on Wednesday, employees with disabilities in supported employment, specifically Australian Disability Enterprises (ADEs), are currently receiving a legal superannuation rate of 9.5%, while the broader workforce enjoys a minimum of 11%.
This reduced superannuation rate operates alongside laws permitting ADEs to remunerate their staff well below the minimum wage, with some earning as little as $2.90 per hour, compared to the national minimum wage of $23.23 per hour.
The relevant section of the Supported Employment Services Award 2020, covering around 20,000 individuals, was last updated on January 1, 2021. It stipulates a super contribution of 9.5% or $15 per week, whichever is greater, for employees with disabilities in supported employment.
The proposed changes would amend the wording of the exemption, aligning it directly with the clause governing super for other employees, which currently references the superannuation guarantee. The minimum rate of $15 would remain unchanged.
The suggestion for this alteration came through a submission by the Australian Chamber of Commerce and Industry and was formally drafted by the full bench of the Fair Work Commission, with circulation just before Christmas.
In response to this issue, Inclusion Australia has criticized the unequal superannuation rates, emphasizing that there is “absolutely no excuse” for such discrepancies. Concerns have also been raised by the Construction, Forestry, and Maritime Employees Union about the outdated information causing problems for workers and potentially leading to wage theft.
The disability royal commission’s final report in October 2023 recommended phasing out disability enterprises and eliminating subminimum wages for people with disabilities by 2034. Despite the federal government’s release of a new national plan for supported employment on Thursday, which acknowledged the human rights of people with disabilities, advocates criticized its failure to substantively address the issue of subminimum wages.
A spokesperson for the Fair Work Commission clarified that they are not currently reviewing the wage structure for people with disabilities in supported employment. However, eligible parties with an interest in the award can submit applications to vary the award at any time.
Submissions on the proposed superannuation changes across the awards under review are open until January 25.