Making rights relevant

National Disability Services conference,

Canberra, 28 November 2007, Graeme Innes AM

I acknowledge the traditional owners of the land on which we meet.

Thank you for the opportunity to speak to you today. Whilst planning this speech, I was thinking that it was a long time since the first time that I addressed an NDS (then Acrod) conference. I was asked to give the Kenneth Jenkins memorial oration at the Acrod conference in the early 80s, as the first President of DPI Australia. The speech then was just the type that you would expect from the head of an advocacy organisation finding its feet, to the conference of the service provision organisation. It was brash, assertive and demanding. Hopefully, it's so long ago that none of you who are here now were there then. I can assure you that today's presentation will meet none of those descriptors.

I want to talk today about making Rights Relevant: a consideration of the rights, provided under discrimination legislation, affecting employment of people with disabilities in business services. In doing so, I will talk in general about the provisions of the DDA relevant to your work, and then make some more specific comments about issues related to Business Services.

In speaking about this topic, I recognise the challenge which all of you face- the challenge actually embodied in the name business services. First, they are businesses, and as such they employ people, including people with disabilities. By doing so, they invoke all of the employment rights available to Australian employees, including the right not to be discriminated against. Secondly, though, they are services for the very people with disabilities whom they employ. This means that, amongst other things, they invoke all of the rights available to these very same people under the Disability Services Act. Thirdly, as well as employing people who meet the criteria set out through the Disability Services Act, it is also quite likely that some of your other employees meet the definition of disability under the Disability Discrimination Act. As 20% of Australians fall into this category, the chances are actually 1 in 5.

This dichotemy of responsibilities presents you all with ongoing challenges. And I thought that, as Australia 's Disability Discrimination Commissioner, I might tease out some of those challenges, because they can only be made easier by discussing them with me, and with your peers. We'll do that through this presentation, and then through some case studies in the facilitated workshop to follow.

Let me start by confirming what I've already implied- Australia 's Disability Discrimination legislation (and for that matter the parallel legislation in each State and Territory) applies to all of your employees, including your employees with disabilities. The Disability Discrimination Act makes it unlawful to discriminate against people with disabilities in employment, including recruitment, terms and conditions of employment, training promotion and transfer, and dismissal or termination. So, in all of your interactions with employees with disabilities, not just those who might be described as DSA clients, you need to bear the DDA in mind.

Disability is very broadly defined, and there is no doubt that the DDA definition would include all people with disabilities who are employed in your services. Discrimination can be direct or indirect: Direct discrimination is less favourable treatment, on the ground of the person's disability, in the same or similar circumstances. Indirect discrimination is treatment which is neutral on its face, but which has a disparate impact on employees with disabilities - or a particular disability - and which is not reasonable in the circumstances. Discrimination includes less favourable treatment due to association with a person with a disability, and also less favourable treatment due to the person's use of an assistive device, reader interpreter or assistant, or an assistance animal.

The key exceptions to this legislation for employers are if to discriminate would cause unjustifiable hardship, and if the employee cannot carry out the inherent requirements of the job. These are both relatively complex legal concepts, and I don't have time to describe them in detail today. Some of the case studies we will discuss later will clarify to an extent, and there is much material on the Disability Rights page of the Human Rights and Equal Opportunity Commission webpage if you need more information. The address is www.humanrights.gov.au/disability_rights

A further exception relevant to Business Services is if an employee receives modified wages based on productive capacity. The DDA does not render unlawful anything done by a person in direct compliance with

An order or award of a court or tribunal having power to fix minimum wages;

A certified agreement within the meaning of the Workplace Relations Act 1996

An Australian Workplace Agreement within the meaning of the Workplace Relations Act 1996

to the extent that the order, award or agreement has specific provisions relating to the payment of rates of salary or wages to persons, where

If the persons were not in receipt of the salary or wages, they would be eligible for a disability support pension and

The salary or wages are determined by reference to the capacity of that person

- see DDA section 47(1)(c). Capacity here relates to reasonable determination by reference to productive capacity in the job concerned.

You would all, of course, be well aware of this provision. It's what allows you to pay reduced wages to people with disabilities assessed by reference to capacity to do the job, and not be open to complaints of discrimination under the DDA.

Let me now turn to some more specific comments about the whole issue of productivity-based wages. As you may be aware, I as Disability Discrimination Commissioner have been a participant in hearings of the Australian Fair Pay Commission relating to productivity-based wages, and that will continue. We have made various submissions, and I want to point out some of the more salient issues with which we have dealt.

The first relates to transparent comparison of wage assessment tools. HREOC has raised concerns that some wage assessment tools available to business services may produce different wage outcomes for people performing the same work.

Disability Service Standard 9, which deals with employment conditions, provides that- "Each person with a disability enjoys working conditions comparable to those of the general workforce."

KPI 9,1 provides "The service ensures that when people with a disability are placed in open or supported employment that their wages are paid according to a relevant award, order or industrial agreement consistent with legislation. These wages are not to be reduced because of incapacity to pay or similar reasons. Where a person is unable to work at full productive capacity due to a disability, the service is to ensure that a pro-rata wage based on an award, order or industrial agreement is paid. This pro-rata wage must be determined through a transparent assessment tool or process,"

KPI 9,2 provides- "The service ensures that when people with a disability are placed in employment that their conditions of employment are consistent with general workplace norms and relevant State and Federal legislation."

HREOC is of the view that, while each individual wage assessment tool may produce valid and reliable results, there should be a transparent process to ensure that different tools that are used to assess the same job also produce consistent results. There should be an openly available database of such tools, the jobs to which they have been applied, and the outcomes achieved. This would mean that both Business Services and representatives of employees could compare similar jobs, and similar job capacities, to ensure that any disparity between wages paid was minimised.

Some Complaints made to HREOC about wage assessment tools in business services have raised a number of interesting issues. These include:

People being assessed on competencies that are outside their job responsibilities and range of experience, and for which they have had no training;

Lack of access to training to enable people with disability in business services to improve their skills against the competencies, and enable them to improve their pay opportunities;

An imbalance in weighting between the core competencies and the industry specific competencies, which disadvantages people, as they are less likely to understand the industry competencies;

That it was not appropriate to base the Business Services Wage Assessment Tool on the National Training Framework, as people employed in business services are long term employees, and are not undergoing training; and

That the BSWAT does not give employees in Business Services a fair days pay for a fair day's work.

These are all valid concerns, and matters which you should take into account in decisions regarding your employees.

Let me comment further on the fair wage issue. The Commonwealth Department of Family and Community Services A Guide to Good Practice Wage Determination (2001) states-

"It is accepted that in open business, wages are paid according to the merit of the worker, with relevant awards acting as a safety net'. Wages are rarely paid in accordance with the capacity of the employer to pay, as an inability to pay represents a non-viable employer. In this circumstance, the employer is required to adjust their business operations by either -- reducing costs (not wages); finding better ways to do business (equipment, training etc.); changing the focus of business (exploring alternative markets); increasing revenue (charging more or selling more); or reducing the number of employees. These decisions may not be palatable to many Business Services, particularly where reduced financial viability may place jobs at risk. The challenge, therefore, is to adapt business operations to ensure that fair wages are payable to all employees of the Business Service.

One approach that Business Services may adopt in order to enhance capacity to pay fair wages is to ensure that quotes for work are based on reasonable wage rates, representing the true cost of labour. It is understood that the highly competitive environment in which Business Services operate has led to a culture of 'undercutting' and cost reduction to ensure work keeps flowing. Business Services may need to discuss alternative pricing structures with their clients when making the transition to fairer wage payment systems."

Not the easiest of requirements, perhaps, but one with which it is important to comply if the rights of your employees are to remain paramount. I have urged the Australian Fair Pay Commission to investigate the consistency of wage outcomes, and fairness of wages, for people undertaking similar tasks in different business services. when assessed with different wage assessment tools. I have also recommended that the Australian Fair Pay Commission should examine a system to ensure fairness and consistency across wage assessment tools. This would mean that people performing the same job in different Business Services are paid an equivalent wage, and a fair wage, regardless of place of employment.

HREOC is concerned about the links between poverty and disability, and the high costs associated with participation in employment for many people with disability. The link between disability and poverty is well established. This is due to a combination of factors which include: lower workforce participation rates compared to people without disability; high unemployment rates (as high as 20 % for certain disability groups); lower wages when employed; and, significant costs associated with disability. An examination of wages in Business Services is relevant to this concern.

Training, or rather the lack of it, was one of the other issues raised in complaints to the Commission. If it is available, training can be used to increase wages, as people's capacity to do the job improves. It can also be used as a basis for transition to open employment. It should always remain on your agenda.

Employment conditions are one of the issues which may be assessed in a discrimination complaint. In this regard, if a complaint is lodged, comparisons may be made between employees with and without disabilities. Another issue which has been raised with the Commission is the practise of putting a new employee on a particular wage percentage, and then not carrying out a job assessment for a period of three months. If a DDA complaint was lodged, the comparison with wage practises for employees without disabilities would be interesting- I wonder how many such employees do not have their final wage determined until three months after they commence. I also wonder, if the assessment of the employee with the disability indicates that they should be on a higher wage, do they receive the backpay due from their start date.

People's rights - in whatever area of life - can often be the subject of lofty debate and discussion. The real challenge is to ensure that they are relevant, and implemented in our day-to-day activities, including in our workplaces. This is true for all Australians, but particularly for Australians facing some form of disadvantage, such as people with disabilities. Your responsibility, in your duel roles as employers and service providers, is to ensure that the rights of all of your employees are made relevant and available for them. And this is not a one-way stree. Smart employers have learned that the old adage in fact works in reverse- if you give your employees an inch they'll give you back a mile.

Thanks for the chance to speak with you today. I look forward to our discussion during the workshop to follow.