People with Disability and Employment (2020)

1. Introduction

1. The Australian Human Rights Commission (the Commission) welcomes the opportunity to provide this submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission).
    
2. The Royal Commission provides an important opportunity to prevent and redress violence, abuse, neglect and exploitation of people with disability. More generally, the Royal Commission has the potential to play a key role in upholding the equality, dignity and autonomy of people with disability and ensuring their full participation and inclusion in Australian society. Ultimately this will benefit all Australians, with and without disability.
    
3. The Commission is Australia’s national human rights institution, with recognised independent status and roles in United Nations human rights fora. The Commission’s purpose is to provide independent and impartial services to promote and protect human rights and fundamental freedoms. The Commission undertakes a range of policy development and research tasks that aim to promote compliance with Australia’s human rights obligations, while also investigating and conciliating complaints of unlawful discrimination and breaches of human rights.
    
4. The Commission welcomes the endorsement of a human rights-based approach in the Royal Commission’s Terms of Reference. The Commission also welcomes the recognition in the Terms of Reference of the intersectional nature of discrimination and disadvantage.
    
5. The Commission is well placed to assist the Royal Commission by providing a human rights framework to guide the development of findings and recommendations within the Terms of Reference.  Of particular note, the Commission conducted a national inquiry into discrimination against both people with disability and older workers in 2016: Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability (Willing to Work).[i] The findings and recommendations of the Willing to Work are referred to throughout this submission.
    
6. The Commission welcomes the selection of employment as the seventh topic of consideration for the Royal Commission. Securing and retaining employment can reduce experiences of violence, abuse, neglect and exploitation for people with disability. The creation of meaningful employment opportunities for people with disability in non-segregated settings at, or above, award wages is important for the promotion of social and economic independence, security and autonomy, capacity building and skill development.
    
7. However, people with disability are employed and are seeking employment at substantially lower rates than people without disability.[ii] The Commission is concerned that while the unemployment rate has remained steady for working-age people without disability (around 5% between 2003 and 2015), it has increased slightly for those with disability (from 8% to 10%) and for those with severe or profound disability (from 11% to 14%).[iii] People with disability are also more likely to be employed on a part-time basis than people without disability,[iv] and more likely to be underemployed.[v] People with disability cite their disability or health as the main reason that they have difficulty in securing employment.[vi] Other reasons noted include lacking the necessary skills, education or experience, the high levels of competition for available jobs, or a lack of vacancies.[vii]  
    
8. Likewise, ensuring that the employment experiences of people with disability are free from violence, abuse, neglect and exploitation is crucial to improving social and economic outcomes for people with disability. Nearly half of all employed people with disability reported that they had experienced unfair treatment or discrimination by their employer due to their disability in the past 12 months.[viii] One in five employed people with disability also reported that they had avoided work due to their disability in the past 12 months.[ix] In 2018–19, almost half of the complaints (44%) received by the Commission under anti-discrimination laws related to disability discrimination, with over a third of these (36%) related to employment. An overview of the disability related complaints received by the Commission between 2013-2019 is provided in Appendix A.
    
9. The Commission is concerned about particularly poor employment outcomes for people with disability across intersections of gender, age and Aboriginal and Torres Strait Islander status:

• Women and girls with disability experience particularly low rates of employment (45.9%).[x] Women with disability work part-time at almost double (58%) the rate of men with disability (31%).[xi]  Women with disability (52%) are also significantly more likely than women without disability (39%) to have experienced workplace sexual harassment in the last 5 years.[xii]

• Young people with disability (aged 15–24) are more than twice as likely as those aged 25–64 to be unemployed.[xiii] They are also three times as likely to be underemployed compared to older people with disability.[xiv]
• In 2012, the unemployment rate of Aboriginal and Torres Strait Islander people with disability was three times higher than the rate for all people with disability.[xv] The gap between labour force participation of Aboriginal and Torres Strait Islander people with disability (35%), and all people with disability (53.6%), is therefore much wider compared to the same gap for people without disability.[xvi]

10. The fact that Australia’s employment framework allows people with disability to be paid as little as $89 per week ($2.34 per hour for full-time employees) is also concerning.[xvii] 
     
11. This submission addresses the Royal Commission’s Employment Issues Paper, released on 12 May 2020 (Issues Paper). [xviii] The submission focuses on issues raised by questions one, two, five, six, and eight of the Issues Paper. The Commission has previously made submissions to the Royal Commission in relation to inclusive education and the criminal justice system.[xix]
     
12. In considering how people with disability experience violence, abuse, neglect and exploitation in the employment context, this submission will focus in particular on experiences of financial and economic abuse, violations of dignity, economic advantage being taken of people with disability, and improper use of labour or employment.
     
13. The Commission notes that this submission does not explicitly consider the experiences of people with disability who work outside the traditional definition of employment. These include on-demand workers, ‘gig’ workers, independent contractors, and workers misclassified as independent contractors under sham contracting arrangements. However, the recommendations and principles outlined in this submission are equally applicable to those working outside the traditional definition of employment. People with disability are more likely than others to work in the ‘gig economy’, and significantly more likely to report that this work is essential for meeting basic needs.[xx] The Commission also notes that much of the data relating to workforce participation of people with disability is defined according to the traditional definition of employment. In order to build a comprehensive understanding of the employment experiences of people with disability it is important that data is collected on a disaggregated basis beyond this traditional definition. The Commission calls on the Royal Commission to ensure that its inquiry into the employment experiences of people with disability is inclusive of these workers and their human rights, regardless of whether a formal employment relationship exists under the Fair Work Act 2009 (Cth). 
     
14. This submission provides: an overview of Australia’s international and domestic human rights frameworks relevant to the employment of people with disability; a brief overview of Australia’s supports and programs for people with disability in employment in Australia; an overview of how people with disability may experience violence, abuse, neglect and exploitation in employment settings; and an analysis of how Australia implements its international human rights obligations in the context of disability employment. The Commission would be happy to appear before the Royal Commission and to provide further clarification on its submission or other issues of interest to the Royal Commission. 

[i] Australian Human Rights Commission, Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability (Report, 2016) <https://humanrights.gov.au/sites/default/files/document/publication/WTW_2016_Full_Report_AHRC_ac.pdf>.

[ii] In 2018  only 47.8% of working age people with disability are employed, compared with 80.3% of people without disability, and 53.4 per cent of people with disability ‘participated in the labour force’ (meaning they were employed or seeking employment), compared with 84.1 per cent of people without disability: Australian Bureau of Statistics, Survey of Disability, Ageing and Carers, Australia: Summary of Findings 2018 (Catalogue No 4430.0, 24 October 2019).

[iii] Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/employment-rate-and-type>.

[iv] In Australia, for people with disability of working age (15-64 years), only 28.3% are employed on a full-time basis, compared with 54.8% of people without disability. Nearly half (44%) are employed on a part-time basis, compared with 32% of people without disability: Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings 2018 (Catalogue No. 4430.0, 24 October 2019); Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/employment-rate-and-type>.

[v] A person is considered ‘underemployed’ if they are employed, work no more than 34 hours per week, would like to work more hours, and could start working more hours if offered a job in the  next 4 weeks. Eleven percent of people with disability are underemployed, compared to 8% of people without disability. Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/underemployment>.

[vi]Neary 44% of people with disability report their ‘own ill health or disability’ as the main barrier to employment, compared to 1.7% of people without disability. Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/employment-participation-needs-and-challenges/difficulty-finding-work>.

[vii] Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/employment-participation-needs-and-challenges/difficulty-finding-work>.

[viii] Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings 2018 (Catalogue No. 4430.0, 24 October 2019).

[ix] Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings 2018 (Catalogue No. 4430.0, 24 October 2019).

[x] Of people with disability, men were more likely to be in the labour force (56.1%) compared to women (50.7%). Men were also more likely to be employed (49.9% of men compared with 45.9% of women). Australian Bureau of Statistics, Survey of Disability, Ageing and Carers, Australia: Summary of Findings 2018 (Catalogue No 4430.0, 24 October 2019).

[xi] Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/employment-rate-and-type>.

[xii] Australian Human Rights Commission, Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces (2018) 180 <https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual >.

[xiii] Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/unemployment/unemployment-rate>.

[xiv] Young people with disability aged 15-24 years (29%) are significantly more likely to be underemployed, compared to young people without disability (19%), and other people with disability aged 25-64 years (9%). Australian Institute of Health and Welfare, People with Disability in Australia (Cat No DIS 72, September 2019) <https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia/employment/underemployment>.

[xv] Australian Bureau of Statistics, Aboriginal and Torres Strait Islander People with a Disability, 2012 (Catalogue No 4433.0.55.055,18 April 2017) <https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4433.0.55.005Main+Features12012?OpenDocument >. More recent data is not available because the recent ABS Survey of Disability, Aging and Carers does not disaggregate data for people with disability who identify as Aboriginal and Torres Strait Islander, culturally or linguistically diverse, or as refugees or people seeking asylum. See CRPD Committee, Concluding Observations on the Combined Second and Third Periodic Reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) [49(c)].

[xvi] Australian Bureau of Statistics, Aboriginal and Torres Strait Islander People with a Disability, 2012 (Catalogue No 4433.0.55.055,18 April 2017) <https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4433.0.55.005Main+Features12012?OpenDocument >.

[xvii] Australian Government, Fair Work Ombudsman, 'Employees with disability pay rates' (Web Page) <https://www.fairwork.gov.au/pay/minimum-wages/employees-with-disability-pay-rates>.

[xviii] Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Employment Issues Paper (May 2020)  <https://disability.royalcommission.gov.au/system/files/2020-07/Issues%20Paper%20-%20Employment.pdf >.

[xix] Australian Human Rights Commission, Submission to Royal Commission into Violence, Abuse,

Neglect and Exploitation of People with Disability, People with Disability and the Criminal Justice System (20 March 2020) <https://humanrights.gov.au/our-work/legal/submission/submission-people-disability-and-criminal-justice-system-2020>; and Australian Human Rights Commission, Submission to Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Inclusive Education for People with Disability (19 December 2019) <https://humanrights.gov.au/sites/default/files/ahrc_20191219_submission_disabilityrc_education.pdf>.

[xx] Professor Paula McDonald et al Digital Platform Work in Australia – Preliminary findings from a national survey (June 2019) 3, 31<https://research.qut.edu.au/centre-for-decent-work-and-industry/wp-content/uploads/sites/35/2019/06/Report-of-Survey-Findings_18-June-2019_PUBLISHED.pdf>.