Opening the door to the employment of more people with disabilities
Disability Rights
Opening the door to the employment of more people with disabilities
| Dr Sev Ozdowski OAM, Acting Disability Discrimination Commissioner ACROD Employment Forum 2003 |
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Introduction
Allow me to begin by acknowledging the traditional owners of the land on which we meet, the Bidjigal clan of the Eora people. I also acknowledge Bryan Woodford, ACROD President; Ken Baker, ACROD Chief Executive, my fellow speakers and participants.
Most of the focus of this conference has been on practical issues for managing disability employment organisations, engaged either in employing people with people with disabilities or in supporting people with disabilities in or into open employment.
I hope that my remarks also have some practical elements for you to consider. But I want to pull back for a moment to look at the bigger picture.
Employment opportunity and national anti-discrimination legislation
The purpose of the discussions at this conference and of your own activities is of course to provide improved employment opportunities for people with disabilities.
The Disability Discrimination Act was also initially conceived as part of a strategy to improve employment opportunities for people with disabilities (and incidentally to benefit the federal budget by reducing rates of dependence on the social security system).
The first proposal for federal legislation on disability discrimination was in fact put forward only as employment discrimination legislation.
National legislation on disability discrimination in employment was one of the major recommendations of the Labour and Disability Workforce Consultancy report, also known as the "Ronalds Report", among a number of other reports leading to the legislation.
I think it is important to remember that protection against discrimination in employment was not seen only as an end in itself. It was put forward as part of a package to achieve greater participation and opportunity for people with disabilities and to ensure that Australian society benefited from people with disabilities being better able to contribute their skills and abilities to their full potential.
Of course, the legislation did not end up only addressing employment issues.
HREOC, together with ACROD as the peak disability service organization and also with disability representative organizations, emphasized that even to be effective in relation to employment the legislation would have to address related areas such as education, access to buildings and information, and access to transport.
The legislation which was actually passed covered quite a wide range of areas of life, although it may be that this coverage should be expanded further.
Achievements in ten years of the DDA
This year for the tenth anniversary of the DDA I launched a publication discussing some of the achievements in using the legislation in the last ten years.
That publication, "Don't judge what I can do by what you think I can't', notes substantial progress in access to public transport and buildings. It points to significant gains in some areas of access to communication and information, and some progress towards equal opportunity and inclusion in education.
Limited progress on employment
What we have not seen, though, is much evidence of progress towards equal opportunity in employment.
One of the problems in this area is that detailed statistical measures are hard to come by. But it seems clear enough that rates of unemployment and underemployment among people with disabilities remain much higher than for people without a disability, and average income levels for people with disabilities remain substantially lower.
One figure we do have from the Australian Bureau of Statistics is that while 80 percent of the general population are participating in the workforce, only 53 percent of people with a disability do.
Another indication is given by figures suggesting that representation of people with disabilities among Commonwealth Government employees has actually fallen significantly during the life of the DDA, from 5.7% in 1993 to 3.6% in 2002.
I do not want to dismiss achievements that have been made by particular individuals or enterprises. But at the overall level for Australian society it is hard to see evidence that we have moved closer to people with disabilities being able to enjoy equally the economic and social benefits that come from equality of opportunity and participation in employment, or our society gaining the benefits of having all its members able to contribute their productive and creative abilities to their maximum potential.
Strategies for improving outcomes
I am not here to offer a definitive view of what should be done about this.
My main purpose is actually to call on you to contribute your own experience and expertise to broader debate on how to open the door to equal employment opportunity for people with disabilities, not only in the specific context of disability employment services but throughout the Australian economy.
If I or the Human Rights and Equal Opportunity Commission had the complete strategy for achieving equal employment opportunity, we would have announced it already during the more than ten years that we have been working to promote and achieve the objects of the Disability Discrimination Act.
In the long term we should see some benefits for employment participation from the gains we are making in access to public transport and access to buildings, as people with physical disabilities in particular become more able to get to work without experiencing extra expense and delays in waiting for transport, and more able to get into workplaces as access becomes a matter of routine rather than of potentially expensive alterations.
Technology also offers prospects for assisting participation and productivity by people with disabilities. In particular technology is opening up ways for people with physical or sensory disabilities to have more effective access to information and more effective choices in methods of using workplace equipment.
Increasing moves towards more inclusive education systems may also see improvements both in people with disabilities being able to acquire skills and training on a more equal basis, and in community attitudes recognizing that people with disabilities are inherently part of our society and do have skills and abilities to contribute.
Limitations and barriers
But none of these developments offer guaranteed and comprehensive solutions even in the long term.
More accessible transport and buildings offer benefits mainly to people with physical disabilities, to a lesser extent people with sensory disabilities, and very little to people with intellectual or psychiatric disabilities.
Technological development similarly seems to have offered possibilities so far mainly for people with sensory or physical disabilities rather than across the full range of disability.
People with psychiatric disabilities for example may require flexibility in working arrangements and greater awareness and understanding from employers and co-workers rather than gaining much from new technologies.
While new technologies can provide new means for people to work and participate, they often also create new barriers.
Too often we see technologies introduced without provision for access and use by people with disabilities, with the result that people with disabilities are continually one step behind and that disability issues have to be dealt with as matters for expensive or inconvenient modifications to equipment or working arrangements instead of being simply incorporated from the start.
As well as issues of physical and sensory access, issues of useability of technology for people with intellectual or learning disabilities very seldom receive the attention they need.
In short, important barriers remain and the DDA alone cannot always deliver the required change.
Costs of participation and adjustments
The issue of expense of course remains a very real one particularly as it impacts on smaller employers and on people with disabilities and their families when they need to meet the costs of equipment themselves.
In my own policy team two members who are blind use Braille computer equipment which effectively makes their disability a non-issue in the way we work. That equipment still costs thousands of dollars more than a standard computer. That is something we can readily accommodate given the resources of a government department and the specialized and high level skills of the people involved, but for a less well resourced employer or for other employees equipment costs of this sort could present a significant barrier.
I welcome the emphasis that ACROD and disability representative organizations have given in discussions of welfare reform to the point that many people with disabilities face significant additional costs in participating in employment. This suggests that cutting benefits to give people incentives to work is not a workable approach, instead of ensuring that people have the resources to obtain equipment and services they need to realize their potential and contribute economically and socially.
We have also seen statements recently from education providers that resource issues are limiting the effectiveness of moves towards inclusive education, which will affect prospects for equal opportunity in employment in future.
I am thinking both of comments from State education ministers that they require more resources in the context of the Commonwealth's decision to go ahead with disability standards on education under the Disability Discrimination Act, and comments from non-government education providers in submissions to the current Productivity Commission inquiry on the DDA.
My view of the draft disability standards for education is that they do not impose a higher level of obligations than already exist under the DDA and equivalent State and Territory anti-discrimination laws. So the issue is not that more resources are needed before education standards can be introduced but that more resources may well be required from governments to ensure compliance with the legislation that is already in place and to ensure effective opportunities in education in practice.
Productivity Commission inquiry
I want to spend some time now talking about the Productivity Commission inquiry that I have just mentioned.
In February this year the Government announced an inquiry by the Productivity Commission into the Disability Discrimination Act. The inquiry is required to report by April 2004. The inquiry is to examine the social impacts of the legislation on people with disabilities and on the community as a whole. It will consider how far the objectives of the legislation - including eliminating discrimination on the grounds of disability - are being achieved. It will also examine the legislation's economic impacts and whether amendments to the legislation are warranted.
Some people in the disability community have understandably been apprehensive about the possible implications of such an inquiry in case it became an excuse for attacking equal opportunity and access as all too expensive and for rolling back legal protection against discrimination.
However, I and my colleagues welcomed this as a valuable opportunity to assess the effectiveness of the legislation and to examine further possibilities for achieving the objects of the DDA. Potentially that could include some examination of the economics of allowing the abilities of people with disabilities to be wasted through failure to support adjustments in work and other social systems.
I think the conduct of the inquiry so far has been encouraging.
The Productivity Commission has released a major issues paper and is holding hearings around Australia.
The inquiry has received over 200 submissions so far. That has included an initial submission from HREOC with a follow up submission commenting on issues raised by other organisations and individuals to follow very shortly. ACROD's national office has also made a brief submission. I would encourage ACROD member organisations to consider getting more involved in this inquiry and debates which may come out of it on barriers to opportunity in employment and means of achieving effective opportunity.
I say that particularly because so far there have not been many submissions from an employer or industry or service provider perspective. ACROD and its members are of course very well situated in this respect being able to provide industry perspectives but also from a point of view of great experience and commitment on disability issues.
I want to spend a few minutes highlighting issues in the employment area raised in this inquiry by HREOC as well as by other submissions and encourage you to respond to these issues - particularly if you disagree or think a different emphasis should be added.
HREOC's own submission admits in relation to employment issues that we have much less detailed information or solutions to provide than we would like.
We do not think that discrimination law alone will be effective in achieving equitable employment outcomes for people with disabilities but we do make some suggestions for improvements to the law.
Disability standards on employment not the best mechanism
We have committed considerable time towards having discrimination law perform its part, including by pursuing development of disability standards.
Unlike the progress we have seen on standards on transport, buildings and now on education, work over a number of years towards disability standards on employment failed to produce a consensus to move forward to adopt standards. One issue was that, while most participants in the process agreed that prescriptive standards were not appropriate, the principle based draft standards which were produced instead were not seen by all parties as delivering sufficient outcomes. Employer representatives also expressed a preference for voluntary standards rather than a further level of regulation.
There may be a role for standards in addressing some specific issues including perhaps about the relationship between occupational health and safety laws and discrimination laws but it is hard to see disability standards on employment as a major part of the solution to employment equity issues at this point.
Reasonable adjustment
More worthwhile results may be gained by taking up the suggestion in a number of submissions to amend the DDA to confirm and clarify the principle of reasonable adjustment as part of the requirements of the DDA rather than through development of standards.
Exemptions
In the absence of standards, HREOC has indicated a view that the exemption mechanism under section 55 of the DDA, in conjunction with appropriate EEO, workplace diversity or other relevant policies and procedures and/or industry codes, appears to offer significant potential for promoting the objects of the DDA and increasing certainty for employers and other relevant parties.
Use of this mechanism depends on applications by or on behalf of employers rather than being something which HREOC is able to initiate itself but we do encourage industry bodies and employers to consider further use of this mechanism in support of positive policies and procedures.
Other employment related provisions
We also supported review of a number of other provisions in the DDA related to employment including
- a need for more definition on what constitutes harassment and on an employer's duties in preventing harassment.
- a need for redrafting of the provision dealing with requests for information to ensure that disability related questions are permitted if and only if they are for legitimate purposes
- possible need for clarification of the application of the DDA to training and apprenticeships
- possible expansion of the Act to cover voluntary work and other occupational relationships alongside employment..
Modified wage exception
We note in our submission that the modified wage exception in the DDA accepts that some people will have lower productivity because of their disability, and that to promote their having employment it is preferable to permit payment on a wage scale modified to reflect lower productive capacity.
However, complaint experience has indicated instances of people being paid reduced wages without any award or agreement providing for this being in place.
Complaints to HREOC and industrial proceedings have also raised issues of the level of support and explanation needed to ensure that some workers with disabilities can participate effectively in agreement making processes.
We welcome the decision by the Australian Industrial Relations Commission to convene a forum in this area.
Additional measures
In common with a number of other submissions we note that many of the issues in this area may be more systemic rather than mainly being about discrimination directly by employers and that additional measures besides provision for discrimination complaints need to be considered
Meeting costs of adjustments and participation
Submissions from an employer/recruitment perspective as well as from the disability community have emphasised the importance of assistance in meeting costs of workplace modifications to provide more effective employment opportunity - including issues such as provision of support workers where required as well as physical modifications to premises or equipment.
We agree with points made in submissions that costs of disability in Australian society are present already rather than being generated by the DDA (other than the specific and limited costs of dealing with complaints), and that the major issue is how to distribute these costs appropriately and reduce their impact as far as possible both on individuals and businesses.
To set against costs, our submission noted that economic benefits which need to be considered may include:
- Reduced costs of separate or parallel service provision as mainstream services and facilities become more accessible and inclusive
- Increased labour market participation, leading to reduced welfare dependence and increased competition in the labour market
- Improved skills formation and use
- Potential improvements in productivity, through requirements for inclusion and accessibility providing incentives for innovation in methods of work and service delivery
- Improved useability of services and facilities for all members of the community through increased adoption of universal design approaches
Our submission supported consideration of further incentives for increased accessibility and inclusion, whether at federal level or at state or local level.
Outside of the limited areas where support is currently provided for access and inclusion, the costs of adjustments to accommodate disability requirements appear to fall either on particular employers, service providers and others with responsibilities under the DDA and equivalent legislation, or on people with disabilities and their families. To the extent possible in this inquiry we would support examination of means of addressing these impacts beyond the legal rules of the DDA itself.
We argued in evidence to the inquiry that there may be a case for increased incentives for actions to increase accessibility and inclusion on competition policy grounds of expanding access in consumer and labour markets as well as on other social policy grounds.
Affirmative action
Our initial submission to the Productivity Commission refers to a lack of employment equity reporting or other affirmative action provisions in the DDA.
A number of submissions support consideration of quotas for employment of people with disabilities as implemented in some overseas nations. Although I agree with the need to consider further measures to address the disadvantaged employment status of people with disabilities I am not aware of evidence of quota systems working effectively.
Other submissions refer to other forms of affirmative action measures provided for in employment equity legislation overseas, including requirements for reporting and development of plans and policies, which we would see as more promising.
The Labour and Disability Workforce Consultancy Report commissioned by the then Commonwealth Government, which preceded the development of the DDA, recommended in 1991 that national employment discrimination legislation be accompanied by reporting requirements comparable to those provided for under the Affirmative Action (Equal Opportunity for Women) Act 1986
Consultation prior to the introduction of the DDA indicated strong employer concerns regarding the burden of any reporting requirement, even if limited to employers having 100 or more staff as with the AAA. It appears appropriate however to at least re-examine the issue of reporting mechanisms for government and possibly for larger businesses.
Information on practical solutions
A critical gap in the machinery for achieving the objects of the legislation appears to be the lack of any coordinated or large scale mechanism for ensuring that employers, service providers and others with responsibilities under the legislation have ready access to information on practical solutions to access and inclusion issues.
There is still no equivalent in Australia for example to the U.S. Job Accommodation Network advisory service, which provides practical information and advice to employers on equipment or other modifications necessary to accommodate a person's disability in the workplace.
I do not believe that such a service would require very large resources, since it is mainly a matter of providing easier access to information and expertise that is already out there.
Research base for standards
Another issue pointed to by a number of submissions in the Productivity Commission inquiry where I expect ACROD may be interested is a lack of systematic government support for research into access and inclusion issues where clear solutions are yet to be identified, in particular as a basis for standards development.
Accessibility rules for government procurement
A number of submissions in the productivity commission inquiry also note the accessibility rules for equipment procured by government which exist in the USA under the Rehabilitation Act.
These rules provide a powerful incentive for companies to address access issues in their mainstream products instead of the only equipment accessible and useable by people with disabilities being specialised equipment which is by more expensive and which may be hard to find information on for some employers and people with disabilities.
In particular these rules seem to have had a major impact on computer software makers building access features into their products.
There appears to be a strong case for considering similar rules in Australia. Rules of this kind could assist in ensuring that workplace facilities become accessible and useable by a wider range of people with disabilities more as a matter of routine, rather than issues of reasonable adjustment needing to be confronted on an individual basis every time. I think input from ACROD and its members on this issue would be particularly important.
Disability and technology
I mentioned earlier the tendency for disability access issues to be left one step behind in development and introduction of new technologies.
Earlier this month I released a discussion paper on telecommunications accessibility issues. I commissioned this paper to promote discussion of ways to ensure that people with disabilities do not miss out on new developments in telecommunications technology and services. I hope to convene a high level forum on these issues later this year.
Just last week I became aware that ACROD is planning a forum on technology issues more generally in October. I support the need for such a forum and hope that the Commission may be able to contribute to it, while recognising that not every disability access and equity issue has a technology based solution.
Conclusion
In conclusion I would say again that the DDA cannot provide the whole of a strategy for achieving equal employment opportunity, although I am committed to ensuring that the law contributes all that it can to this objective.
I would welcome your co-operation and engagement in seeking to ensure that the DDA does make a positive contribution including through taking up the opportunities presented by the productivity commission inquiry.
This inquiry also presents opportunities to pursue agendas beyond review of the law. I have mentioned some possibilities including improving availability of information on removing barriers to participation in employment by people with disabilities, and additional incentives and support to address costs of participation and workplace adjustments.
I am sure there are other issues waiting to be raised as well as new perspectives on the issues that have been raised so far.
The reason that I am giving so much emphasis to this productivity commission inquiry is not just because it is about the legislation which my own agency has the lead role in administering or because we are putting considerable effort into responding to this inquiry.
The reason is that I think we need to look at fresh approaches to achieving something nearer to equal opportunity for people with disabilities in employment. And, as important as the current processes are in our respective worlds of reforming business services and applying the Disability Discrimination Act, I do not see in either of those areas anything that we are doing now that is really opening the doors for people with disabilities on a large enough scale.
But between us I think we can come up with the right doors to try.
Thank you.