Opportunity Knocks:Workers with a Disability

Diversity Council Australia
20th Anniversary Celebrations
Inaugural Diversity Conference
Wednesday 7 September, Sydney

Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner

(Speaking notes)

Introduction

Allow me to begin by acknowledging the Gadigal people of the Eora Nation, 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.

I very much welcomed the change in name from the Council on Equal Opportunity in Employment to the Diversity Council Australia.

Equal opportunity and non-discrimination are of course important parts of human rights law. But non-discrimination is only a means to an end - a society which enables and benefits from all the diversity of abilities and aspirations and experiences that come from millions of different people.

It does not take much imagination to see that different languages in the workforce of an organisation or a country are a valuable asset. Different perspectives based on gender and culture are also coming to be valued.

Disability is also an essential element of our experience in human communities. It is essential for communities and governments to acknowledge this and respond appropriately - as a matter of human rights and as a matter of using the abilities of the community to the fullest.

Employment discrimination

I want to talk today about the national inquiry into employment and disability which I am conducting on behalf of the Human Rights and Equal Opportunity Commission.

Access to employment opportunities is an essential part of access to broader 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 Disability Discrimination Act.

This is ironic since i mproving 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.

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 in particular we will seek to add value to the work already going on. The same is true though in all areas of the inquiry's work. The best possible outcome would be that the inquiry report is a complete anti-climax because governments have already picked up the issues and taken good initiatives without waiting for us. We have absolutely no interest in taking credit for results, or being the only ones with good ideas, so long as the results do happen.
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 as follows:

  • Develop a pilot project to identify any risks associated with occupational health and safety laws, disability discrimination laws and industrial relations laws

This working group had its first meeting yesterday. We are still writing up the results. My own impression at this point was that the meeting showed how much work there is to do to present employers with clearer information, and that information alone is not enough to address the employer concerns which seem to be a major limit on opportunities for people with disabilities. If governments want society wide changes in employment of people with disabilities then governments may need to be looking at taking financial or legislative measures or both to address the sources of perceptions of higher risk where a prospective worker has a disability.

  • Develop a model for work trials to enable people with disabilities to demonstrate their abilities and work with employers to resolve their concerns.

This working group also met yesterday for the first time. Again we are still writing up the results but I think some very promising progress was made towards setting out the elements of a workable model for using work trials to get people with disabilities through the door to demonstrate their abilities. Several times through the day it was emphasised that actual experience is far more effective in changing attitudes to people with disabilities than all the awareness and attitude advertising campaigns in the world.

I can only agree - working with people with disabilities as colleagues inside and outside my own organisation has I think taught me far more than any of the words I have read by now in my own job.

  • The next working group to meet next week has an agenda to develop a model for providing ongoing support to employers and employees with disability. In this and other areas one thing we are looking at is how and whether the models which apply to rehabilitation of an existing worker after a work related injury can be extended to assist the entry of people with disabilities into employment from education or from being outside the workforce.
  • The other working group meeting next week will be working on develop a model for a flexible workplace, drawing on work done on family friendly workplaces. I will come back to this issue in a minute.

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 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.

This is an area where I think people engaged in diversity thinking and practice have more to contribute, in making the linkages between disability and more general issues of workplace flexibility.

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.

Conclusion

I strongly encourage everyone who isengaged in diversity policy and practice to join in the opportunities which the next phase of 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.


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