OHS & HREOC Inquiry
Disability Rights
OCCUPATIONAL HEALTH AND SAFETY AND HREOC'S INQUIRY INTO EMPLOYMENT AND DISABILITY
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Graeme Innes Discrimination Alert & Occupational Health News Conference |
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Introduction
I would like to acknowledge the traditional owners of the land on which we stand and pay my respects to their elders both past and present.
Attorney-General, conference delegates. Before I commence my presentation today I would like to thank Discrimination Alert and Occupational Health News for organising this very important forum to discuss recent changes in law and policy and the impact of these changes on equal employment opportunities for Australians and health and safety in our workplaces.
As you have just heard, the Australian Government has enacted several pieces of legislation to help protect people with disability, women, aged workers and people from culturally and linguistically diverse backgrounds from discrimination and has diverted resources and supported HREOC to promote equality of opportunity in employment for many vulnerable groups.
Today, I have been asked to focus my discussion on people with disability.
People with disability represent a significant 16.6% of Australia 's working age population. 1
Despite the introduction of the Commonwealth Disability Discrimination Act in 1992, and similar legislation in States and Territories prior to that, discrimination in employment has not decreased. In fact, evidence would indicate that barriers have increased and opportunities have diminished.
Let's just take a snapshot of the situation.
Since 1993, while the participation rate for people without disability has risen, the labour force participation rate of people with disability has fallen. In 2003, the participation rate for people with disability was 53.2% compared to 80.6% for people without disability, that is, half compared to four in five. For people with a psychiatric disability the workplace participation rate was even lower.
The employment and unemployment rates reflect a similar trend. In 2003, the employment rate for people with disability was 49% compared to 77% for people without disability and 8.65% for people with disability were unemployed compared to 5% for people without disability.
And when employed, people with disability are earning lower wages, on average, than workers without disability.
If we hope to create equality of opportunity in employment we must ask: why has the situation been getting worse for people with disability? What are the barriers? What solutions are needed?
In 2005, HREOC launched a National Inquiry into Employment and Disability to examine these questions. The Inquiry found that one of the main impediments to the employment of people with disability lies in employer concerns about increased exposure to legal and financial risks related to occupational health and safety, disability discrimination and unfair dismissal laws. I will elaborate on this and summarise other findings of the Inquiry in a moment.
Most people with disability want to work if they have the capacity to do so. And from this point of view, HREOC welcomes initiatives that aim to assist people with disability into employment, off welfare, and participate and contribute to society and the working economy of our country.
But, will the Disability Discrimination Act and recent federal reforms ensure that people with disability will have a fair go and not be discriminated against when participating or attempting to participate in Australia 's workforce? Have the appropriate initiatives and safeguards been put in place? Will more Australian's be given 'a fair go'?
My discussion today will provide some responses to the these questions but focus mainly on how occupational health and safety laws operate and impact on the ability of people with disability to enjoy equality of opportunity in employment.
I will commence by summarising the findings during HREOC's Inquiry into Employment and Disability which was conducted last year. 2
The National Inquiry into Employment and Disability
Barriers
Information gathered by the Inquiry suggests there are three sets of obstacles of common concern to people with disability who are, or who are about to be, in the open workforce, and their actual or potential employers:
- The first obstacle is about information - specifically, an absence of easily accessible and comprehensive information and advice that assists in decision making processes and responds to ongoing needs
- The second obstacle is about cost - concern about costs of participation for people with disability and possible costs borne by employers when employing a person with disability
- The third obstacle is about risk - more specifically, concern about any possible financial and personal impact on people with disability and their employers, especially if a job does not work out.
Solutions
The Inquiry made 30 recommendations to address the three sets of obstacles. HREOC maintains that all the recommendations must be considered in a holistic manner. Implementation of any one of the Inquiry's recommendations will be a positive step towards addressing the barriers facing people with disability and their actual or potential employers. However, they are unlikely to have any substantial impact if implemented in a piecemeal fashion.
It is this reason that the final recommendation of the Inquiry is the critical recommendation in the set - that the Commonwealth government lead the development of a National Disability Employment Strategy for Australia . This strategy must embrace a whole of government approach and its development must involve a multi-sector coalition comprised of people with disability, employers, employment service providers and relevant Commonwealth, State and Territory agencies.
But let me now turn to one of the main impediments to employment identified in our Inquiry.
Occupational health and safety, DDA and IR laws
As mentioned, the Inquiry found that one of the main impediments to the employment of people with disability lies in employer concerns about increased exposure to legal and financial risks related to occupational health and safety, disability discrimination and unfair dismissal laws.
The primary concern appears to be the belief that there are higher health and safety risks when there are people with disability in the workplace, and therefore greater exposure to workers compensation claims. While the Inquiry did not receive any clear evidence that there is, in reality, a generally higher safety risk, the perception appears to be strong enough to have a significant impact on hiring and termination decisions by employers.
Due to the importance of this perceived barrier an expert working group was convened to begin work on this issue.
With regard to occupational health and safety laws, the working group identified the following concerns:
- there are difficulties in identifying if any additional risks are created by a person's disability
- there are difficulties in accessing information and advice as to how to manage safety risks
- there is a perception that there is a non-delegable duty of care and that the duty is higher regarding employees with disability
- there is a perception that risk must be completely eliminated for people with disability - 'zero tolerance' approach - rather than 'reasonable and practical measures'
- there are difficulties in getting someone to say that the appropriate measures have been taken to provide a safe working environment
- there are concerns that even if it were possible to get 'sign-off' on a safe environment, it may not provide legal protection
- there are concerns about the serious financial and personal liability consequences for any problems that arise
- there are concerns that if an employee with disability fails to disclose their disability appropriate steps are not taken to comply with the Act and liability may be incurred.
The group also identified that there is confusion about the interaction between occupational health and safety legislation and disability discrimination laws.
Regarding disability discrimination laws the Inquiry identified that there is a general lack of understanding about what discrimination laws require and little incentive to comply with legislation because consequences are light.
Regarding industrial relations laws the Inquiry identified that there are concerns about the increased prospect of an unlawful dismissal claim on the basis of an employee's disability.
The final report included a recommendation that work should continue in this area particularly in relation to the following:
- Government-sponsored personal and workplace assessments, which also recommend risk management strategies
- A government-sponsored trial program that simultaneously covers insurance premiums and ensures the collection, analysis and dissemination of reliable data about the true impact of OH&S, industrial relations and disability discrimination laws on employers, and
- Engagement of State workers compensation authorities in disseminating information and developing disability employment strategies.
HREOC is pleased to hear that the Heads of Workers' Compensation Authorities has commenced work with its members in relation to this recommendation.
The working group will convene again soon to continue this work.
Review of the Occupational Health and Safety (Commonwealth Employment) Act 1991
In April, the Minister for Employment and Workplace Relations announced a review of the Occupational Health and Safety (Commonwealth Employment) Act 1991. HREOC lodged a submission noting many problems with the Act.
In particular, HREOC raised concerns that employers are deciding not to hire people with disability as they are unable to obtain the necessary information and assistance to ensure compliance with obligations under the Act.
HREOC also raised concerns that, many people with disability are not disclosing their disability as they fear employers will not hire them on the basis of fears related to the Act. In this situation, the employer is unable to make the necessary adjustments to provide employees with a safe workplace or safe systems of work.
In our submission we also outlined the difficulties faced by employers when balancing the competing responsibilities created by occupational health and safety and disability discrimination legislation.
On this matter, a decision handed down last Friday by the Federal Magistrates Court is particularly important so I will momentarily digress .
The case of Vickers v Ambulance Service NSW3 involved an employer who refused to employ a person on the basis of his disability. The person had type 1 diabetes. Raphael FM found that the employer had discriminated against the person with disability in deciding not to offer him a job as his Honour found that the employee could manage his disability in a way that would not interfere with his ability to perform the inherent requirements of the job. Importantly Raphael FM discussed the decision in X v The Commonwealth4 . His Honour said:
Properly read, X instructs a court to make a balancing act. It does not require that an employer guarantee the safety of the potential employee or others with whom he may come into contact. That approach would be far too exclusionary of persons with disabilities.
His Honour went on to say:
Of course, the employer must have regard to the health and safety requirements that govern its undertaking. But where these emanate from a state legislature they cannot be prayed in aid to permit conduct which would be in breach of the Commonwealth DDA5.
This decision lends weight to the recommendations outlined in our submission to the Minister to clarify the competing obligations and to provide more guidance to employers. I will highlight some of the more significant areas identified for reform.
First, HREOC recommended that the Safety, Rehabilitation and Compensation Commission formulate policies and strategies to support employees with disability to disclose their disability, in a way that does not result in discrimination or adverse penalty, but fosters compliance with the Act.
Second, we recommended the Act be amended to provide a greater focus on the provision of information, training and advice, on an as-needed-basis, that responds to employer concerns about what they need to do to meet occupational health and safety requirements for employees with disability and how to go about doing it.
Third we recommended that the Act be amended to clarify the competing obligations under the Act and the DDA for employers in respect of employees with disability and that the Act be amended to clarify the obligations of employers in respect of employees, or potential employees, with disability.
Fourth, we recommended that employers should have access to government-sponsored advisers and assessors, whether through the Safety Rehabilitation and Compensation Commission, Comcare or other agency, when they are in doubt of their obligations under the Act or whether adjustments need to be made to ensure the safety of employees with disability and others in the workplace.
Fifth, we recommended the development of Codes of Practice and Standards on safe methods of working, where disability issues are relevant, including reasonable adjustment. The Codes of Practice should indicate the level of compliance which is sufficient to meet the requirements of the Act and allow a mechanism of sign-off.
And finally, we recommended that that more guidance needs to be provided to employers and to the courts as to what is "reasonably practicable" for employers to do to fulfil their duty of care and what matters should be taken into account in determining what is reasonably practical.
Conclusion
In answer to the questions "Will the recent changes ensure that people with disability will have a fair go and not be discriminated against when participating or attempting to participate in Australia 's workforce? Have the appropriate initiatives and safeguards been put in place?"
Evidence gathered by HREOC indicates that further legislative and policy reform is urgently required to ensure equality of employment opportunity for people with disability and assurances that people with disability will not be exposed to personal, legal or financial risks
In the absence of further reform, HREOC is concerned that as a result of Welfare-To-Work more people with disability may be exposed to discriminatory decisions not to hire on the basis of fears related to occupational health and safety legislation or otherwise not be provided with the necessary adjustments required for a safe workplace or safe system of work due to difficulties in obtaining the necessary information and support.
The development of a national disability employment strategy, which has a whole-of-government approach and is developed with a multi-sector coalition including relevant State and Territory agencies, is essential to achieve equality of employment opportunity for Australians with disability and safety in our workplaces. It is unlikely that the situation will change without this coordinated and holistic approach.
Thank you
1. Working age is defined as 15-64 years of age. Australian Bureau of Statistics, Disability, Ageing and Carers Australia , Catalogue Number 4430.0, 2003.
2.The final report ( WORKability II: Solutions - People with Disability in the Open Workplace ) and the interim report ( WORKability I: Barriers - People with Disability in the Open Workplace ) of the National Inquiry into Employment and Disability can be found on HREOC's website at www.humanrights.gov.au/disability_rights/employment_inquiry/index.htm
3. Vickers v Ambulance Service NSW [2006] FMCA 1232