Failure to pay staff under their industry award is one of the cardinal sins against the “Australian way of life”. The right to work, and to be paid fairly is at the heart of our country's identity. As a community, we don’t tolerate people being underpaid or not paid for their work. The Fair Work Commission, by its very name, exists to uphold this value.
In the past week, two cases of extreme wage theft have appeared in the media. One is at the hands of a famous and once-beloved chef; the other is at the hands of public policy and legitimate law. In response to the first case of wage theft, Australia was so mad that they had the perpetrator, George Calombaris in tears being interviewed by the 7:30 Report as to how this could have possibly happened! Calombaris sobbed an explanation of being ignorant of the rules while being focused on his creative adventure. I haven’t followed the case closely enough to know if that is a genuine claim, but I imagine it is an issue faced by many small businesses. Nonetheless, the result of $7.8 million underpaid wages to staff has sparked disgust from the public and a hefty fine from the Fair Work Commission.
The second case does not have a tearful television interview in its wake. There is no clutching at excuses for ripping off an entire group of people. What the Australian public probably do not realise is that the wage theft of people with disabilities in Australia is not only common; it is a way of life. The recent dataset released by the National Disability Insurance Scheme on employment outcomes for people with disabilities gave some horrifying insights into the current experience of workers with disabilities.
Remembering that this accounts only for people on the NDIS books, the story starts grim with the unemployment rate doubling for people with disabilities (10.0%), compared to those without (5.3%). There are three options for employment for a person with a disability in 2019:
Open employment (full award wages, apprenticeships and self-employed people)
Open employment but not full award wages
Australian Disability Enterprises
Two out of the three options do not provide full award wages. This makes wage theft a pretty everyday experience for the disability community. The NDIS reported that: 1. 33% of people aged over 25 years (41% of those under 25 years) were in open employment (plus 8% of those over 25 years, 9% under 25 years were in apprenticeships and “other”). 2. 10% of people aged over 25 years (14% of those under 25 years) are in open employment but are not receiving full award wages 3. 49% of people aged over 25 years (35% of those under 25 years) work in Australian Disability Enterprises.
Allow me to do the maths for what this means: 59% of people with disability aged over 25 years do not receive full award wages. It is a similar situation for younger people aged under 25 years, where 55% of them do not receive full award wages.
All this wage theft is going on, and no tears on the 7:30 Report! What is going on Australia!?
I guess you might not have known that this was happening. Well, now you do, and I would like to think you are getting pretty outraged! Not only are people with disabilities twice as likely to not have a job, when they do have a job over half of them are not being paid properly!!
So, in the words of Leigh Sales when she interviewed George in the middle of his now not-so-busy restaurant “how has happened!?”.
Let me give you some context.
Australia, like most countries in the world, have been pretty rubbish when it comes to promoting the right to work for people with disabilities. Largely, we just weren’t employed for most of history. But in the 1950s, parents of people with disabilities created “sheltered workshops”. Sheltered workshops got people with disabilities into performing menial tasks like manufacturing and production work for very little money. This was the start of poor public policy which has continued to inform the plight of the disabled worker in Australia. Remember, the three options of employment pathways I mapped out earlier didn’t really exist at this time. Sheltered workshops and some trailblazing people with disabilities who had slipped into the open employment market were really it at the time.
Sheltered workshops attracted government funding and became big business across Australia. But over the decades, social expectations have shifted in favour of the rights of people with disabilities and so the model has evolved to somewhat reflect the recognition of those rights. The traditional model of sheltered workshops lives on in what we now call “Australian Disability Enterprises” (ADEs).
In 2004, ADEs started using the BSWAT (Business Services Wage Assessment Tool). The BSWAT determined a person’s wage by assessing their competency and productivity. It was a pretty brutal tool and often resulted in people with disability, especially those with an intellectual disability being paid ridiculous wages like $1.85 per day (see Nojin v Commonwealth of Australia (2012) FCAFC 192). In 2012, the Federal Court found that the use of the BSWAT was discriminatory and the Commonwealth Government established the BSWAT Payment Scheme to give compensation to those affected by its operation. In 2013, a class action was brought, and as a result, the BSWAT Payment Scheme applied to all people with an intellectual impairment employed in an ADE as at or before 22 October 2013.
Despite very clear messaging from the Federal Court and our slowly shifting community values toward recognising people with disability as equals, 59% of people over 25 years are still not being paid full award wages.
This is because (in my opinion) ADEs continue to use Wage Assessment Tools that assess competency, as well as productivity. An alternative to these assessment tools is the Supported Wage System. The Supported Wage System applies a productivity assessment to an employee with a disability. The result of either Wage Assessment Tools or the Supported Wage System is people with a disability getting less than the awarded or national minimum wage.
There is support among advocates to have the Supported Wage System in place of the Wage Assessment Tools. I agree, any avenue we can pursue to end wage assessment tools that include competency promises a better endpoint for people with disabilities.
Though, I wonder if we can do away with specific systems for workers with disability all together? I worry that these systems continue to propel the belief within our community that people with disability cannot work 100% in their jobs. Wage assessment tools propel the myth that people with disability are less than, and not important economic participants. These beliefs and myths are incredibly harmful. They erode the relationship between people with disability and people without disability because it continues to put people with disability out of sight. It also keeps people with disability with a doubled unemployment figure and living in poverty. By the way, 45% of people with disability live in at or below the poverty line. In Australia. In 2019.
As a country, Australia believes in fair wages. We need to apply that belief to everyone, including people with disability. This is no longer about the intuitively low expectations you have of people with disabilities and that tightly held view that people with disability can’t contribute to jobs “like everyone else”. Treating people equally in employment does not create three ways of being employed, there is one way: open employment with full award wages!
The work that people with disability conduct in ADEs like building pallets for Bunnings and stuffing the show bags for the Royal Adelaide Show can and should continue. Who doesn’t like pallets and show bags!? But they need to pay those people full wages for doing it. There is a job for everyone in Australia, and everyone in Australia deserves a fair wage!
I want you all to be as outraged about the wage theft from people with disabilities as you were for the restaurant crew working under the now-disgraced George Colambaris. Of course, public policy and the law needs to change. But we don’t have to wait for that. All of you can actually change this right now. You might be a small business owner, the partner in a major corporate, an executive in government or a valued team member in an organisation. The next time you have a job opportunity come up in your team (at full award rates), you could expand your search to include people with disabilities. Look at skills and match them properly to the person. Don’t be held down by your unconscious bias, thinking that people with disabilities can’t do what you need to be done!
JUST EMPLOY THEM AND PAY THEM FOR THEIR WORK! It really is as simple as that.
Let's not cry on the 7:30 Report, let's just promote the right to work for all people with disability.
A quick note that while this blog is 100% my words and ideas, there is some really amazing work going on in the disability employment space which is worth checking out if this has fired you up to be a gamechanger for the employment of people with disabilities in Australia:
The Wage Justice campaign has been fighting for the end of Wage Assessment Tools used by ADEs and are champions for the right to work for people with disabilities. Read more about their work here.