Focusing on Futures: Employment and Disability

Macarthur Disability Services Annual PSO, ATLAS & Day Services State Conference Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner Tuesday 6 September 2005, Sydney

Introduction

Allow me to begin by acknowledging the traditional owners of the land on which we meet, and pay my respects to their elders both past and present.

I follow this custom wherever I go to speak in public. I think recognising Australia 's indigenous peoples and their prior ownership of this land in this way is more than just good manners. It is an important part of recognising our diversity as a nation.

The dimension of diversity I am here to talk about today, though, is disability, as an essential element of our experience in human communities, and as something it is essential for communities and governments to acknowledge and respond to appropriately.

I will be talking mainly today about the national inquiry into employment and disability which I am conducting on behalf of the Commission.

I want to acknowledge here the roles of your own organisation in advancing opportunities for people with disabilities in practice, including:

• personnel services for recruitment and placement of people with disabilities;
• provision of employment and training opportunities for people with psychiatric disabilities;
• post school opportunities and transitional programs including developing pre-employment skills.

This area of transition into work is one where good services seem thinnest on the ground nationally, and where we seem to suffer most from poor co-ordination between the different levels of government and the services funded by them. Your own views on what works and what doesn't would be particularly interesting in this area. In return I hope you find something of value in my view from the perspective of the Human Rights and Equal Opportunity Commission.

I want to start by talking about the Disability Discrimination Act more generally, before coming back to the employment Inquiry.

The Disability Discrimination Act

The Disability Discrimination Act was passed in 1992 and came into effect in March 1993.

Its objects were, and are,

• to eliminate, as far as possible, disability discrimination in various areas of life;
• to ensure, as far as practicable, that people with disabilities have the same rights to equality before the law as the rest of the community; and
• to promote the recognition and acceptance within the community of the principle that people with disabilities have the same fundamental rights as the rest of the community.

Who does the DDA protect

The definition of "disability" in the DDA is intended to be broad and includes physical, intellectual, psychiatric, sensory, neurological, and learning disabilities.

The DDA covers a disability which people:

• Have now,
• Had in the past (for example: a past episode of mental illness),
• May have in the future (for example: a family history of a disability which a person may also develop), or
• Are believed to have (for example: if people think someone has a disability or illness because they are a carer for someone who has that disability or illness).

The DDA also protects associates of people with a disability such as family, friends, carers and co-workers if they are discriminated against because of that relationship.

The intention in drafting the legislation was to avoid arguments about whether a person's condition is a disability. We have not seen the same perverse results as there have been in the US and the UK, where for example cancer survivors who have been discriminated against have been denied a remedy because they could not show they were "substantially restricted in a major life activity": that is, they could not show they were disabled enough to be protected against being wrongly treated as more disabled than they were!

The drafters of the DDA did better than this because they were clear that in defining disability under the DDA they were not conferring any special rights - only the right not to be discriminated against.

Discrimination is unlawful in education, employment, public transportation, sport, clubs and associations, accommodation, finance and banking, insurance and superannuation, access to premises and to goods, services and facilities, and in administration of Commonwealth laws and programs.

Complaints

Complaints can be made:

• by a person directly affected by discrimination
• by a person acting on behalf of another person who has been discriminated against
• by a person on behalf or him or herself and on behalf of other people who have experienced the same discrimination (this is what is meant by a representative complaint or class action); or
• by an organisation acting on behalf of members or constituents who have been discriminated against .

Compared to other legal processes, there are very few formal requirements for discrimination complaints. Complaints do need to be put in writing but people who have difficulty with this can ask Commission staff to assist. Complaints can now also be made by email.

In some circumstances the Commission can also assist complainants to find other supports they might need, like an interpreter or advocate.

A network of disability discrimination legal services was funded by the federal Attorney-General's Department from the outset of the legislation and there are also specific legal services focused on mental illness, HIV/AIDS and intellectual disability.

HREOC will investigate any complaints received that are within its area of responsibility.

If it appears that disability discrimination may have occurred, the person or organisation will be asked to participate in a conference with a conciliator and the complainant in order to help resolve the matter to the satisfaction of both parties. This is called conciliation. Depending on the complaint, conciliation may result in:

• changes in policies or practices
• reversal of a discriminatory decision
• an apology
• withdrawal of the complaint
• payment of damages, and/or
• some other outcome.

Where a complaint cannot be resolved by conciliation, you can take your complaint to the Federal Court or the Federal Magistrates Court for an enforceable ruling if you choose to.

I should stress that only a very small proportion of complaints end up in the Court. Of the complaints which are found to be within our jurisdiction a large majority are resolved by conciliation.

Importance of complaints

You will see that I have been emphasising complaints as a means for achieving large scale changes, or at least for starting off other processes which lead to change.

It may seem unfair that it is up to people on the wrong end of discrimination to do something about it.

I understand the perception of many people in the community that once the law is there, it should just be complied with.

But not many laws are like that - otherwise we would not need traffic police and speed cameras for example.

Alright then, but isn't it the Human Rights Commission's job - isn't it in fact my job - to see that the DDA is enforced and implemented? Shouldn't we be out with the "discrimination cameras", and issuing on the spot fines for infringements?

Certainly, we have a role in promoting awareness of and compliance with the legislation.

This includes

• negotiating standards for improving access and equality
• conducting public inquiries on systemic issues;
• encouraging business and government organisations to be proactive in removing discrimination, for example by developing their own disability action plans.

But still, the ability of the Commission to initiate or achieve change by itself is very limited.

Unlike bodies such as the ACCC, the competition and consumer watchdog, the Commission does not have power to initiate complaints or legal proceedings under the legislation itself.

The "discrimination cameras" and equality inspectors around Australia do not consist of any large paid bureaucracy, then, but of the millions of people with disabilities and their advocates who have the power to use the legislation in direct advocacy and negotiations to achieve change, and who have the power to use the complaint process.

What is discrimination

The legislation covers both direct and indirect discrimination.

Direct discrimination happens when people with a disability are treated less favourably than people without the disability are treated or would be treated.

The Act also covers indirect discrimination, where people with a disability are not singled out for less favourable treatment but where a one size fits all rule or situation actually excludes or disadvantages people with disabilities.

So for example a building with entrance only by steps indirectly discriminates against people who us wheelchairs or have other mobility impairments. A phone service providing only for voice communication indirectly discriminates against people who are deaf or have speech impairments.

Importance of standards

The indirect discrimination aspect of the DDA has worked fairly well in relation to physical and communications access issues like this in individual cases. But to produce systemic outcomes across our society instead of just success in individual cases, the Disability Discrimination Act contains an important provision for the Attorney General to formulate Standards under the Act.

These Standards may be made in the areas of public transport, employment, accommodation, education, and Commonwealth Government laws and programmes.

This is a feature which was borrowed from the United States legislation, the Americans with Disabilities Act.

The purpose of standards is to provide clearer definition of what actually must be done to ensure access and equity than is provided for in the Act itself, in which the requirements for equal access for people with disabilities are only broadly stated.

Areas of achievement

In a number of areas the combination of complaint processes and capacity to make standards has worked well.

Transport

Access to public transport has been a striking area of success under the Disability Discrimination Act. From a small handful of initial complaints, HREOC and disability community representatives were able to negotiate agreement by all Transport Ministers to a strategy including accessibility of all new public transport facilities and services throughout Australia, and accessibility of existing services and facilities within 20 years (with a small number of exceptions). Standards for accessibility entered force during 2002 and I think it can be seen that implementation is in most areas well underway, with the numbers of accessible buses and railway stations steadily increasing for example.

Access to premises

Access in the built environment is another important area of achievement, but where much more also remains to be done.

There have now been hundreds of disability discrimination complaints in Australia which have been resolved with an agreement to modify premises to make them accessible. However, to make a significant impact on access and opportunity, the numbers of buildings made accessible need to be not in the dozens or even hundreds each year, but in the hundreds of thousands.

We are now several years into the process of developing standards on access to premises. The stage has now been reached of hard bargaining about what the building industry can afford to do. I am hopeful however that within a few months national standards will be agreed and that accessibility in new or redeveloped buildings will finally become a matter of routine (other than in the most exceptional cases).

Education

Many more children with disabilities are now included in mainstream schools than was the case ten or twenty years ago. However there are still important problems to be addressed in ensuring that people with disabilities have truly equal access and opportunity in education. These include issues of accommodation of students with particular communication and information needs and how to accommodate students whose disability affects their behaviour.

Standards on education under the Disability Discrimination Act entered into force on 18 August this year. These should assist in achieving further change towards more effectively inclusive education systems.

Employment discrimination

Access to employment opportunities is clearly a very important part of access to economic and social participation and opportunity. So it is disturbing that employment is one of the areas where there has been least progress since the adoption of the DDA.

This is ironic since improving employment opportunity and outcomes for people with disabilities was a large part of the original motivation for introduction of the Disability Discrimination Act in 1992.

It was meant to contribute to making a difference to employment outcomes overall for people with disabilities in Australia .

And yet, after more than 12 years of experience in implementation of the DDA - and after more than two decades of similar legislation in a number of States including NSW - the employment position for people with disabilities does not seem to have improved; if anything, it has got worse.

More complaints are received on employment issues than any other area under the DDA. A high proportion of these complaints have been resolved by conciliation. But it must be obvious after 12 years of the DDA and over 20 years of similar State legislation that we are not achieving equal opportunity for millions of Australians with disabilities one complaint at a time.

Since 1993, the labour force participation rate of people with disabilities has fallen, while the rate for people without disabilities has risen.

In 2003, 53.2 per cent of people with disabilities participated in the labour force as compared to 80.6 per cent of those without a disability. The workplace participation rate for people with a psychiatric disability receiving disability support payments is only 29%

Among people in the labour force - that is, working or looking for work - the unemployment rate for people with disabilities in 2003 was 8.65 compared to 5% for people without disabilities.

When employed, people with disabilities earn lower wages, on average, than workers without disabilities. Having a disability reduced the average gross weekly wages of females by $110 (24 per cent) and males by $105 (17 per cent) in 1998, compared with people without disabilities

Reasonable adjustment and legislative improvements

Part of a response to these statistics may lie in reform of the DDA itself.

Last year the Productivity Commission completed an extensive review of the DDA. It found overall that the legislation was working well. But it pointed to a need for improvements in the employment area. In particular it recommended that the legislation spell out expressly duties to make reasonable adjustments instead of leaving those to be implied from the concepts of discrimination used as at present.

I said earlier that the concept of indirect discrimination has worked fairly well in relation to physical and communications access issues. It has not always worked so well in the employment area, in particular in relation to people with psychiatric disabilities or whose disability requires some adjustment in the organisation of work.

Courts have struggled to find indirect discrimination for example

• where a man with an autistic spectrum disorder could not cope with unexpected changes in routines
• where a person with a mental illness was not allowed to return to work after an extended break.

An express duty to make reasonable adjustments could make rights and responsibilities in these situations clearer, as well as other situations where the adjustment is provision of or changes to a piece of equipment.

I certainly do not see the law as the answer to everything in this area however.

The Productivity Commission conducted a very useful review of the legislation. But it was limited to being a review of the legislation, rather than being a broader review of how better to achieve the objectives of equal opportunity and participation for people with disabilities in Australian life.

A national inquiry on employment and disability

In March this year the Human Rights and Equal Opportunity Commission launched a National Inquiry into Employment and Disability.

The time seemed right for such an inquiry:

• On a personal note I did not want to finish my term as Human Rights Commissioner and Disability Discrimination Commissioner later this year without doing my best to make a difference to employment outcomes and opportunities for Australians with disabilities.
• The debate this year about welfare reform and a growing awareness of skills and labour shortages emerging in the Australian economy have highlighted, more than I can ever remember happening before, the need to ensure that people with disabilities can participate and contribute their abilities in the workforce.

This Inquiry is about finding ways to make it easier for people with disabilities to participate in the open workplace; and for employers to hire people with disabilities.

The major strengths of the Commission's inquiry process are that it is independent of government or any interest group, and that it will allow anyone with constructive ideas and solutions to bring them forward.

We want to focus on practical solutions.

Main issues

So far there are three emerging issues:

1. Information - people with disability and employers are concerned about the absence of easily accessible and comprehensive information that can assist in their decision making processes and support their ongoing needs.

2. Cost - people with disability are concerned about the costs of participation, and employers are concerned about the costs of employing a person with disability.

3. Risk - people with disability and employers are concerned about the financial and personal impact of participating in the workplace, especially if a job does not work out.

Where are we up to?

On 19 August we released an interim report.

The written submissions and consultations to this Inquiry have raised many different issues, concerns and ideas. This Interim Report does not attempt to comprehensively recount all of that information.

Rather, this Interim Report attempts to:

• group the issues raised in the submissions into common themes;
• select the issues within those themes that appear to be the most pressing; and
• develop an agenda for further research and action in the remainder of 2005.

The term 'people with disability' covers people in a wide range of circumstances.

• Some disabilities are sensory (eg visual and hearing impairments), some relate to mobility, some are intellectual disabilities, some are mental illnesses and some are an acquired brain injury.
• Some disabilities are present at birth, some are the result of car and sporting accidents, some are acquired in the workplace, some are the result of illness.
• Some disabilities are severe, some are mild and other disabilities lie somewhere in between.
• Some disabilities are readily recognisable, others may be invisible until disclosed.
• Some disabilities are permanent, some are temporary, and some are episodic.
• Some need physical workplace accommodations, others do not. Some need on-the-job supports, others do not.
• People with disabilities have a wide variety of aptitudes and interests in work just as other members of the workforce do.

There is no single way to address the needs and concerns of this diverse group of people, but there are some unifying themes. This report focuses primarily on those common features.

However, where submissions have highlighted special needs of different groups, the Inquiry has tried to separate out those concerns. In particular, there were many submissions to the Inquiry that dealt with the special needs of people with mental illness, Deafness and hearing impairments, visual impairments and intellectual disability.

The final chapters in the interim report set out the Inquiry's recommendations and next steps. The "next steps" section of the report indicates an extremely busy few months ahead.

Some of the recommendations address issues which are already on the government's agenda

• The creation of a one-stop shop for information
• A review of employer incentives - including the Workplace Modification Scheme

In these areas we will seek to add value to the work already going on.

In a further four areas we are convening working groups of experts from government, employer organisations and the disability community. The agendas for these working groups are:

• Develop a pilot project to identify any risks associated with occupational health and safety laws, disability discrimination laws and industrial relations laws
• Develop a model for work trials to enable people with disabilities to demonstrate their abilities and work with employers to resolve their concerns
• Develop a model for providing ongoing support to employers and employees with disability
• Develop a model for a flexible workplace, drawing on work done on family friendly workplaces.

We will also be producing two further issues papers: one on international models for increasing participation and employment, and one specifically on international models for government policies on accessible procurement.

Accessible procurement and universal design

Other countries such as the United States and Canada have laws and policies in place requiring that when government purchases facilities, in particular such as information and communications technology, it must wherever possible ensure that these facilities are accessible to people with disabilities. The European Community has adopted a high level directive on accessible procurement and is now moving to fill in the details.

The point of all this is that if facilities and systems and technologies are built to be accessible from the outset, then when an employee acquires a disability or a person who has a disability applies for a job, it will not be such a big deal so often.

There will not need to be decisions about whether adjustments needed are reasonable or would impose unjustifiable hardship, if the adjustment has already been built in to the ordinary way of doing things.

Flexible workplaces

Universal design thinking is not only relevant to buildings and equipment, but also to how work is organised.

It seems increasingly clear that workplace flexibility can be important for a range of reasons some of which relate to disability.

One worker may need flexible working arrangements because of unpredictable and episodic impact of a mental illness. Another may need the same flexibility because of unpredictability of when an accessible taxi will actually arrive, despite the improvements I have mentioned in transport access. Still another may need flexibility because of the unpredictable and episodic impact of responsibilities as a parent, as many of us here can perhaps confirm.

Our interim report recommends development of guidelines on flexible workplaces building on the work that has already been done on family friendly workplaces. We also recommend sharing of information from businesses who already have experience in creating flexible workplaces on what does and does not work.

Recruitment and support needs for people with mental illness

A large proportion of submissions to our Inquiry had a particular focus on mental illness. It seems clear though that measures to address needs in this area should as far as possible avoid further stigmatising people with a mental illness as problem cases.

Adjustments made in the context of mental illness can have benefits for many other groups of people. For example, a workplace that has flexible working hours will benefit people with mental illness, and people with multiple sclerosis, and HIV/AIDS. As I have just noted it will also benefit working parents who have episodic demands on their time.

Similarly a workplace that ensures access to a mental health hotline will not only benefit those with a chronic mental illness, it can also benefit other employees who go through a stressful period during their lives.

The Mental Health Council of Australia is currently conducting consultations on this issue in order to inform the Department of Employment and Workplace Relations on appropriate measures to take. We will be seeking to assist in this process.

More submissions welcome

We are taking a further round of public submissions in response to the interim report. The deadline for submissions is 30 September 2005 so I encourage anyone interested in making a submission to do so as soon as possible.

Any feedback received by the Inquiry will be discussed in the final report, which is due to be published by the end of 2005.

Employment services funding

One element in which you may have particular expertise to contribute is in the area of the impact of Budget changes to the employment services model

As you know, the 2005 Budget introduced a raft of reforms regarding government-funded employment services, some of which commenced on Budget night in May, some on 1 July 2005 and some of which will commence on 1 July 2006. Predictably, some of the proposed reforms have been welcomed and others have been strongly criticised.

While it is too early to ascertain the true impact of the reforms, there are concerns that some of the features may not in fact have the effect of providing better opportunities for people with disability to enter and remain in the workplace.

The interim report contains a recommendation that DEWR augment its consultation with relevant parties in order to better understand the likely outcomes of the various measures proposed in the Budget regarding employment services. In particular, the report recommends a focus on:

• the impact of maintaining a cap on Disability Open Employment Service places for those on the DSP
• mechanisms to ensure better cooperation between Disability Open Employment Services and Job Network
• whether Job Network has sufficient expertise to assist people who access their services
• whether the Case Based Funding model is sufficiently funded to assist people with high support needs
• whether the recruitment and post-placement support provided by Job Network and Disability Open Employment Services adequately caters to those with episodic needs (for example people with mental illness)
• the impact of the new employment services model on recruitment outcomes and long-term retention of people with varying disabilities.

Conclusion

I strongly encourage people such as yourselves who are engaged in a practical way with advancing employment opportunities for people with disabilities, to look at the opportunities which the Human Rights and Equal Opportunity Commission's national inquiry on employment and disability provides for you to contribute your expert views and knowledge.

This is the point of running a public inquiry. We are not the experts, you are, and we need to hear your voices, so that we have the best chance of making a real and positive difference for people with disabilities in Australia . Thank you.