A lacuna in superannuation payments for those with a disability
Whilst disabled workers wages may legally be reduced below the minimum wage, commensurate with their ‘productivity’, we should not also be reducing their superannuation to reflect that lower wage.
Workers with a disability should be entitled to be paid the same Superannuation as able bodied and able minded workers irrespective of the Supported Employees Services Award 2020, or the Supported Wage System. Yet, they are not.
The Supported Employees Services Award 2020, and the Supported Wage System in Australia governs how disabled workers are paid in their employment. The Fair Work Act 2009 gives employers via those instruments the power to pay less than the minimum wage.
In a nutshell, workers with a disability are generally paid considerably less than the minimum wage due to the above industrial instruments.
The Fair Work Act 2009 specifically allows for this, and in fairness does so to incentivise employers to employ those that may otherwise struggle to secure employment, permanent or otherwise.
There is a formula within the above industrial instruments that determines a disabled workers ‘productiveness’ and so the unproductive component is essentially deducted from their overall wage.
As I am writing this, the current Federal minimum wage for those without a disability in Australia is $915.90 per week (or $47,626.80 per annum).
The minimum wage for a disabled worker after deductions under the industrial instruments mentioned, can be as low as $3.01 per hour, or $106.00 a week, or $5,477.08 per annum.
That explanation is a dramatic simplification of a complex and regulated process, and so it may seem unexpected that this is not the issue that prompts me to write this article, though no doubt it is an article unto itself.
Instead, my concern is that workers with a disability, earning less than the minimum wage, are also receiving much less superannuation due to their wage being less than the Federal minimum wage.
Workers in Australia receive 11.5% of their wage as superannuation guarantee. The exceptions are those that are under 18 years old and working less than 30 hours a week – another article for another day.
Critically, (and this is where I need your attention) a disabled worker earning $3.01 per hour, who works a full-time job for 12 months would be paid $633.88 per annum as superannuation, whereas the same person working a similar job on the Federal minimum wage would accrue $5,512.00 per annum.
Obviously, that amount varies depending on the ability to perform, or in other words, the extent of the disability. The greater the disability, the less they received as a wage, but importantly, the less they received in superannuation.
The solution?
Pay Superannuation to disabled workers at the rate of 11.5% of the minimum wage, or the minimum Award amount, whichever is greater.
The salary can remain (for now anyway) at the rate determined under the industrial instruments referred to above.
Whether this payment is made entirely by the Federal Government, by the employer, or there is a contribution from the employer as co-contribution, is likely a subject of further consideration but is there seriously an argument against such a move? I suspect not.
The pride and comfort in watching your superannuation grow should not operate to the exclusion of our disabled workforce, after all we must always have as our primary goal, to advance Australia fair.
Andrew Wright
Partner
WK Lawyers