The Rights of People with Disabilities: Areas of Need for Increased Protection: Chapter 2: Employment

The Rights of People with Disabilities: Areas of Need for Increased Protection

Chapter 2: Employment

• Issues Addressed
• Rights
• Denial of Rights and Discrimination
• Commonwealth Involvement: Introduction
  • Direct Federal Government involvement
  • Disability Services Act
  • Sheltered Employment Allowance
  • Income Support
  • Legislation related to employment conditions
  • The Commonwealth Employment Service (CES)
  • Conclusion
• Barriers to Open Employment
• Major Issues and Recommendations

Issues Addressed

This section of the Discussion Paper concentrates on two main areas of employment. Every attempt has been made by project workers to contact people with disabilities who have worked in sheltered workshops, activity therapy centres, a range of open employment situations, and some who have been without employment.

The two main matters considered are:

• the Federal Government's involvement in the provision of employment for people with disabilities (the existing programs and the policies behind such programs and the inter-relationship between such programs, i.e. whether the programs complement or contradict each other); in this context the recommendations and implications of the Social Security Review Issues Paper No.5 - Towards Enabling Policies:
  
  Income Support for People with Disabilities ('Towards Enabling Policies'), is also considered;
• the existing barriers for people attempting to find employment in the open workforce.

The Federal Government's report of the Handicapped Programs Review, New Directions comments that:

Society places a high value on vocational activity and income in determining an individual's status. This was reflected in the constant call for paid employment which was seen as a highly desired consumer outcome during the Review. People who have disabilities are just as interested in being employed as people who are not disabled but their employment rate is much lower than that for non-disabled people (30% participation of people with disabilities in the labour force compared to 70% participation for the total population aged 15-64).

Rights

Principle 3 of the United Nations (UN) Declaration on the Rights of Mentally Retarded Persons states that:

The mentally retarded person has a right to economic security and to a decent standard of living. He has the right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities.

Principle 7 of the UN Declaration on the Rights of Disabled Persons states that:

Disabled persons have the right to economic and social security and to a decent level of living. They have the righ4 according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.

The key elements of these two Principles are that people with disabilities have the right to:

• economic security;
• useful, productive work; and
• be recognised as people with individual capacities and skills.

Further, the first recommendation in the area of employment made by the New Directions report states that:

all Commonwealth employment programs (should) be strongly encouraged to move towards integration.

It is in the light of this recommendation, and the rights espoused in the UN Declarations, that the following discussion on discriminatory practices in areas of employment has been framed.

Denial of Rights and Discrimination

Commonwealth Involvement: Introduction

The New Directions report stated that the following major issues were raised in submissions and consultations:

• the fact that the greater part of government funding for people with disabilities has been directed towards sheltered workshops, and these facilities were considered to be inadequate and in need of reform;
• the unchallenging and inappropriate work frequently found in workshops and the low level of wages;
• the importance of paid employment for disabled people;
• the need for greater access to work opportunities, particularly competitive employment;
• the absence of real incentives to employers to encourage the employment of disabled people;
• the apparently higher costs such as increased workers' compensation premiums when employers take on staff with disabilities whether in sheltered or open employment;
• the problem created by the impact of the Invalid Pension on earnings resulting in disincentives to work;
• the need for a range of flexible employment options, particularly in integrated settings;
• the lack of ongoing support for those in competitive employment;
• the lack of access to work opportunities for those currently excluded;
• the lack of training for employment service providers;
• the continuing confusion between the employment roles of activity therapy centres (ATCs) and sheltered workshops; and
• the design of small business loans or loan guarantees to assist interested persons dependent on income security payments to raise the development capital required to establish businesses.

To date, most of these issues have still not been addressed, and information collected by project workers indicates that people with disabilities still confront the same difficulties.

Most of the issues mentioned above need to be addressed at the federal level. The Federal Government has a large and complex role in the provision of employment for people with disabilities. The New Directions report considered two areas of the Federal Government's involvement:

• direct government employment; and
• government assistance towards employment:
  • support services to individuals to make it more likely that they will fmd and maintain employment; and
  • incentives for employees which increase the kinds of employment opportunities made available to people with disabilities.

This Discussion Paper will consider:

• direct Federal Government involvement - employment in the Australian Public Service (APS)
• the Disability Services Act;
• the Sheltered Employment Allowance;
• other income support: Towards Enabling Policies;
• Federal legislation related to employment conditions;
• the Commonwealth Employment Service

Direct Federal Government involvement

Discrimination in the APS is an example of the inconsistency between policy, implementation, and practice.

The Equal Employment Opportunity Survey of the Australian Public Service in 1986 indicated that 7% of respondents reported a disability. Even though most of the disabilities reported were relatively minor, staff with disabilities had not progressed as rapidly as comparable able-bodied staff. The EEO Survey did not ascertain the difficulties that people with intellectual, physical, or sensory disabilities encountered in obtaining employment in the APS.

Following the abolition of the Public Service Board, government departments have been expected to take on greater responsibility for implementing Equal Employment Opportunity programs. The newly created Public Service Commission maintains a central monitoring function, but is only able to call for additional information. It has become increasingly easy for departments to produce EEO programs which have little impact, and this greatly affects the prospects of people with disabilities obtaining and maintaining employment in the APS.

After the abolition of the Public Service Board, the recruitment functions of 'Special Placement Officers' have been taken over by the Department of Employment, Education and Training. The 'Special Placement System' for people with disabilities has operated since 1971. Applicants must meet the same selection test standards and other appointment conditions as everyone else, but special testing arrangements are available for applicants whose disabilities would affect their performance at a standard test session. In effect these conditions exclude people with intellectual disabilities from employment in the APS.

As a result of this discrimination, and in response to Recommendation 22 of the New Directions report, the Public Service Board began the Intellectual Disability Access Program. This program allows ten people with intellectual disabilities to be employed in three Departments (Defence, Administrative Services, ACT Administration) without fulfilling standard entry requirements (i.e. selection tests). Although the range ofjobs that participating departments have identified is limited, there is an attempt to discriminate in favour of the person with an intellectual disability. The program has been in existence for three years, yet it is only now that applicants for the first ten positions are being interviewed.

Another entry requirement which could adversely affect people with disabilities is the medical test. Currently a person has to be judged fit to serve for three years. A recruitment review is currently under way. The Human Rights and Equal Opportunity Commission has made a submission to the review requesting the abolition of such a requirement. This Discussion Paper supports that request.

If a person with a disability obtains employment in the APS, he or she may experience difficulty in maintaining it. Although the principle of reasonable adjustment exists, many people indicated that they were unable to get the support they needed from individual departments.

Each APS agency is required to make reasonable adjustment for the known physical or intellectual limitations of an applicant or employee unless the agency can demonstrate that 'to do so would impose upon it undue hardship'. 'Reasonable adjustment' actually involves the taking of specific measures in relation to people with disabilities, whenever it is necessary, possible and reasonable to do so.

This flexibility of operating or adapting any circumstances or system, with the purpose of extracting the best and fairest result in the most reasonable manner, does not preclude the usual considerations of merit and cost effectiveness.

Reasonable adjustment may include:

• making facilities readily accessible to, and usable by, people with disabilities;
• job restructuring;
• modification or acquisition of equipment or devices;
• modification of work schedules;
• provision of ancillary resources, such as readers, deaf language interpreters, note-takers, etc.;
• appropriate adjustment of examinations, employment practices and policies.

Despite the formulation of Equal Employment Opportunity programs by each department, the existence of Special Placement Officers, the principle and process of reasonable adjustment, and the Intellectual Disability Access Program, employment in the APS remains difficult for most people with disabilities, and particularly for people with intellectual disabilities.

Disability Services Act

The Disability Services Act nominates two 'employment service types' which the Federal Government is prepared to fund:

• 'competitive employment training and placement services' are defined as services to assist persons with disabilities to obtain and retain paid employment in the workforce and include:
  
  (a) services to increase the independence, productivity and integration of persons with disabilities in the workplace;
  
  (b) employment preparation, and employment and vocational training services; and
  
  (c) services to assist the transition of persons with disabilities from special education, or employment in supported work settings, to paid
  
  employment in the workforce;
• 'supported employment services' are defined as services to support the paid employment of persons with disabilities, being persons:
  
  (a) for whom competitive employment at or above the relevant award wage is unlikely; and
  
  (b) who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

Clearly, the range of types of employment which can receive funding under these two 'employment service types' is large, and enables the Federal Government to meet some of the recommendations of New Directions.

Project workers interviewed and collected information from people with disabilities, parents and advocates and a range of people involved in the employment field. Some of the comments obtained, which relate to services funded under the Disability Services Act, are recorded below, on a state by state basis. Generally the information suggests that many organisations currently providing employment services do not comply with the Principles and Objectives of the Disability Services Act and that sheltered workshops are as inadequate now as at the time of publication of New Directions.

The federal Department of Community Services and Health must ensure that adequate mechanisms for transfer are provided, that sufficient funding is available, and that the transition date of 1992 is adhered to by organisations which provide employment.

New South Wales

The average New South Wales weekly earnings in sheltered employment are $23.35 for men and $19.77 for women. The overall average is $22.09. Rates of pay are often lower than the expense involved in getting to work. These wages are extraordinarily low. Various reasons have been offered as justification for these low rates of pay, including:

• pay rates are set so as not to effect the Sheltered Employment Allowance (SEA: see below for more detail) or Invalid Pension (IP);
• inability of workshop proprietors to pay award wages;
• profits made are often used to subsidise other services (e.g. residential) and thus cannot be paid in wages;
• slow working rate and low productivity levels of workers;
• high supervision rates;
• longer training periods than for employees without disabilities;
• employees are retained during periods of no work;
• provision by management of non-employment services.

The low rates of pay do not accord with the ACTU Disabled Workers Charter of 1981 which provides that 'payment should be commensurate with the work carried out and not dependent on the strict income tests applied to both the IP and the SEA'. it is also in discord with the general Australian principle of 'a fair day's pay for a fair day's work'.

Workshops have been criticised for offering very poor personal and industrial conditions to their workers. Many workers complain primarily about the lack of respect with which they are treated by management and non-disabled supervisory staff. For example, many resent having to ask for permission to leave their station to get a glass of water or to go to the toilet. There have been some complaints of management interference in the private lives of workers, such as the forbidding of intimate or personal relationships between workers in their own time. One Sydney disability worker reported that a woman with an intellectual disability in her late twenties had been threatened with exclusion from both the workshop where she worked and the residence in which she lived if she continued her friendship with a male worker at the same workshop.

Other issues of concern include confidentiality of personal information contained in employee records and the refusal by some managements to allow workers to form workers' committees. One workshop is reported to have terminated the employment of a worker with an intellectual disability after she became involved in an advocacy organisation. A complaint that is consistently made is that workers are often treated like children by supervisors and management. Many of these problems could possibly be overcome by the unionisation of sheltered employment and its placement within the normal arbitration system.

If it is agreed that people with disabilities working in sheltered employment are employees, then the right to organise industrially must be conceded. Sheltered workers in New South Wales do not currently belong to any union and are thus denied the protection and support that such membership affords.

In February 1988, the question of unionisation for sheltered workshop employees was considered by the New South Wales Labor Council (the Council) at its Annual Meeting. The decision of the Council to consider its position was apparently closely linked to recent claims of exploitation and abuse in workshops. For example, shortly before the meeting, allegations of cruelty and physical assault were raised in Parliament against a workshop at Taree in the north of the State. There had also been consistent pressure from some quarters of the disability movement who felt that the union movement as a whole was discriminating against disabled workers by refusing to extend membership and advocacy services to them.

it is arguable that abuses (whether financial, personal or physical) can occur in workshops because of their isolation from the community and the normal channels of industrial arbitration. The reluctance of the union movement to become involved in the issue of sheltered employment (and thereby provide some independent observation) must be considered to have exacerbated the situation.

At its meeting the Council responded to these concerns with what many see as a compromise position. The Council gave general support to the principles espoused by the Disability Services Act. It also endorsed the concept of equal pay for work of equal value, but stated that it must be recognised that there were difficulties in enacting this principle where workers with a disability were involved. The Council's submission to the Green Paper on Industrial Relations in New South Wales of 1988 basically recommended that there be an investigation and review of the different methods and approaches available to provide access for disabled workers into open employment (but without prejudice to the Labor Council Wages Policy). The Council's fmal position was that it supported the implementation of award conditions and occupational health and safety standards for sheltered workshops, but that any policy on award wages required further study. Thus the proposal of access to existing unions or the establishment of a Disabled Workers Union is not a part of the labour movement's policy in New South Wales.

It may well be that until the union movement is willing to become involved in the issue of sheltered employment, workshops will remain outside the working life of the community and excluded from the protection that such involvement affords.

Australian Capital Territory (ACT)

The project worker for the ACT reported that, in sheltered workshops:

• people with disabilities are referred to as 'employees', while employees without disabilities are 'staff;
• people with disabilities are paid wages based on productivity and the inherent inhibition of the IP, while staff receive award wages;
• most people with disabilities are not members of unions, while most staff are members;
• some staff without disabilities react to people with disabilities in a patronising and intolerant manner;
• all staff and employees are covered for compensation, and leave conditions (sick, annual) are also the same. Some people with disabilities, however, have not taken up their recreation leave. In one case an employee had accumulated 12 months recreation leave.

Wages in ACT workshops range from 50 cents per hour to $2.00 per hour for employees with disabilities. One of the most alarming features of the wage structure is that even in cases of directly comparable work, employees with disabilities receive non-award wages. In one case, three staff had been appointed to an industrial relations team to provide support, amongst other things, to an 'Employee Representative Committee'. Two members of the team did not have disabilities and were on award wages; the member with a disability remained on sub-award wages.

It must be stated that the major service provider in the ACT is working towards a personnel policy 'which reflects typical industry standards and which does not differentiate between employees who have disabilities and those who do not' and that, subsequent to collection of information, action was taken to adjust terminology of 'staff and 'employee'. Notwithstanding this, the service provider believes that:

recognition must be given to the capacity of the Association to pay for the removal of those distinctions which are financially based. For this reason the distinctions apparent in remuneration levels will remain pending government intervention; i.e. until the Association is subsidised by government to an extent where it is able to pay realistic wages. In the interim the Association undertakes to provide a minimum wage for a 40 hour week which shall, when added to Social Security payments if applicable, be not less than the currently published poverty line for a single person without dependants.

Clearly, the implementation of a non-discriminatory policy which relates to recruitment, induction, conditions, staff development, and industrial relations is difficult in circumstances where attitudes of staff are discriminatory. One interviewee commented:

Supervisors can be patronising using phrases like 'good boy' and 'good girl', and often tease employees. These are isolated examples but the prevailing attitude is 'I am better than you'.

An employee with disabilities indicated that 'not getting enough pay' was a major grievance, and another felt that 'not being treated like an adult as an equal' was a big problem.

Victoria

The project worker cited the following comments from a survey on employment conducted by the Victorian Disability Employment Action Centre:

As far as I'm concerned there's absolutely nothing good about the workshops. The low pay is the least of the problems. I'd happily do voluntary work if it was meaningful and I was learning something or doing something useful. The working conditions are often atrocious and there's an institutionalised and ghetto atmosphere that's enough to sap anyone's confidence and destroy your initiative.

I was never happy in the workshops, but they (the disability organisation) kept me on there because no one, including me, thought I could do anything else. I found the work terribly boring and meaningless. I'd go there all day, be paid nearly nothing and study at night. They'd expect me to be grateful. It wasn't until I started to believe in myself that I got out.

I really, really don't want to work in a workshop. I just feel that if I were stuck in one that would be the end of me. I'd lose all my capabilities and turn into a vegetable.

The project worker interviewed another person (who had previously worked in a sheltered workshop) who said of such workshops:

They are the worst kind of discrimination. On the one hand you are a worker - when there is work to be done. In every other respect the system treats you like an incompetent child. Rights. There aren't any. Not even the right to leave. A friend of mine who could operate his wheelchair except for the brakes, would be left regularly at his work area with the brakes on. One day he was left like that all day. No toilet, no lunch. When he got mad they called him a 'behaviour problem'.

Sheltered Employment Allowance

Wages in sheltered workshops are currently paid in conjunction with a government benefit called the Sheltered Employment Allowance (SEA). This allowance is payable to a person with a disability who is engaged in sheltered employment at an approved workshop if she or he would otherwise qualify for an Invalid Pension (IP). This requirement means that the person must be 85% incapacitated for work. It currently pays a weekly rate of $120.05 plus an incentive allowance equivalent to rent assistance of $15. The SEA is paid by the Department of Social Security to the workshop management, and it is then paid by the workshop, along with any 'wage' to the person with the disability. The maximum a person on this benefit is allowed to earn without tapered reductions to the benefit is $40 per week. Extra income which amounts to $81 or more will result in the forfeiture of Pensioner Health Benefits concessions. Such provisions represent disincentives to workers who might otherwise attempt to maximise their income; it also encourages sheltered workshop management to use income test thresholds to determine maximum rates of pay.

This system of payment and the amounts involved have been criticised by the disability movement (e.g. ACROD 1986). An alternative scheme was mooted in Towards Enabling Policies. The suggestion (which has been supported by sectors of the disability movement) is that money equal to the invalid pension should be paid to individuals to represent a minimum wage. The recommendations of Towards EnablingPolicies provided for a person in receipt of low productivity-based wages to receive additional income support subject to the income test. Towards Enabling Policies also discussed a possible eligibility ceiling of earnings of about $150, although no recommendations were made in this regard. New Directions also recommended change; it suggested that the federal Departments of Conimunity Services and Health, and Employment and Industrial Relations establish a productivity based minimum wage for people in long-term sheltered employment. Schemes such as these would give people with disabilities a clear incentive to increase skills which in turn would improve their chances of obtaining and retaining open employment. It would also go some way to ending the poverty trap in which people with disabilities working in sheltered employment often find themselves.

Income Support

The Department of Social Security's arrangements which provide income support for people with disabilities are comparatively complex. Primarily, income support for people with disabilities is provided through:

• the invalid pension;
• the sickness benefit; and
• a range of repatriation pensions and allowances.

Other relevant cash payments include:

• special benefit;
• sheltered employment allowance;
• rehabilitation allowance;
• carer's pension;
• mobility allowance; and
• domiciliary nursing care benefit.

Towards Enabling Policies examined the current structure of social security programs for working age people with disabilities within the context of the changeable Australian demographic structure and labour market, and in community attitudes and expectations.Towards Enabling Policies formulated some of the major issues as follows:

• whether it remains appropriate to make the distinction between permanent incapacity for work for invalid pension and temporary incapacity for work for sickness benefit rather than a distinction between long-term and short-term reduced capacity for gainful employment;
• whether there is a more appropriate means by which to establish entitlement to invalid pension than the existing 85 per cent permanent incapacity criterion. More fundamentally, what is the most appropriate formulation to reflect the complex relationship between impairment and reduced capacity for employment and how should this be expressed in legislation and in administrative guidelines;
• how to restructure income support for people who have disabilities which substantially restrict their workforce potential so as to enable recipients to have economic security and dignity. The objectives of income support arrangements for all recipients must include economic security and dignity; as much for those who are unemployed or caring for children alone as for those whose workforce incapacity arises from a medical condition;
• the need for income support which provides the conditions for economic security and dignity is especially highlighted where it is likely that a disabling condition will cause workforce incapacity for a long period of time and therefore where time spent in receipt of income support is likely to be of a long duration.

Towards Enabling Policies also attempted to:

• assess ways to reformulate income support arrangements so as to reduce barriers to workforce participation and to support movement into a range of employment settings;
• identify the groups which may require special consideration in the development and administration of disability-related income support payments;
• evaluate the role of a disability allowance in recognising the additional costs which must be met by people with disabilities, particularly those engaged in employment, education, training, rehabilitation programs, job search, household work and childcare, and other community activities (the Office of Disability's Costs of Disability is an essential reference in this area);
• evaluate the extent to which income support schemes can be better integrated with labour market programs and employment programs in providing assistance to people with disabilities to enter the mainstream of employment and community life.

The proposals of Towards Enabling Policies have been accepted by sectors of the disability movement. Continuing consultation with people with disabilities is needed to ensure that the recommendations of Towards Enabling Policies are acceptable to those most concerned.

Legislation related to employment conditions

There is no special law setting out and protecting the rights of workers in sheltered workshops. The relevant areas of law relating to conventional employment include industrial awards, the common law and legislation.

The legal status of workers in sheltered workshops revolves around the question as to whether they are employees or consumers of a service. There has been no determination of this question at law.

The usual test of employment status rests on the existence of a contract for service or contract of employment. Such contracts need not be formal, but can be implied from the actions or words of the parties involved. Peter Rozen, in his Pilot Study on Legal Issues in Sheltered Employment (published in 1986 by the Victorian Law Foundation) applied the common law tests and concluded that workers in sheltered workshops were indeed employees within the meaning of the law. This is also the view of the Intellectual Disability Rights Service, a community legal centre based in Sydney. Where a person is an employee the law imposes certain duties on his or her employer and provides certain protections to the employee.

Each State has worker's compensation legislation which sets up compulsory schemes for employers to enable them to pay compensation to workers injured in the course of their employment, or travelling from or to work; such legislation covers workers who are employees. Many people working in sheltered workshops could come within the scope of such legislation, but there has been no decision by the courts on this so the situation remains unclear.

Industrial awards are agreements that set minimum standards for wages, penalty and over-time rates, sick pay entitlements, rights to information about pay and any deductions made, and many other detailed requirements for work conditions. Awards are the main source of the terms and conditions of work for 90% of 's workforce. There are currently no awards for workers in sheltered workshops; these workers, however, might be able to obtain awards if they joined existing unions or formed a union of their own which then applied to the court for an award.

The common law obliges an employer to provide a safe workplace and suitable work as well as reasonable notice of dismissal. The confusion about the legal position of workers in sheltered workshops means that the traditional common law protection and additional legislative benefits are, at least, unsure and possibly unavailable for these workers. Also, different types of work and work arrangements (which vary from workshop to workshop and even from worker to worker) make classification in any of the usual ways difficult.

Any future finding that people working in sheltered workshops are employees, or amendments to existing legislation specifically including such workers in the definition of an employee, will clearly have great significance.

The Commonwealth Employment Service (CES)

The functions of the CES, according to section 6(a) (ii) of the Commonwealth Employment Seivice Act 1978, include the following:

to make special arrangements and provide specialfacilities wherever necessary so as to assist such persons who are immigrants orAboriginals, who are young orhandicapped...or who otherwise have special requirements or disadvantages in relation to employment.

Information collected by project workers indicated that the experience of people with disabilities suggests a less than supportive role by the CES at the regional level. A recent report released by the Disability Employment Action Centre also suggested that CES users with disabilities were dissatisfied with the assistance provided. Comments included:

I went there once and they more or less told me that I was unemployable and not to bother to come back... I felt really disheartened.

I found them very discouraging. All they could ever say was that I couldn't do what I wanted to do because of my disability and lack of experience. On the surface they can be quite friendly andpleasant but in actualfact they just don't care and are incredibly unhelpful. I would like some information on just how many people with disabilities they actually get work.

I think they're just hopeless. I find those cards too hard and confusing to read and they just say they don't think any of the jobs would be suitable for me. They never, never ring anyone up for me or actually sit down with me and help me.

They're hopeless. In five years I've never got a letter from them saying come in and try for a job. Sometimes they won't let me try for one because they assume I can't do it. I hate them.

Generally they're very unhelpful and have a rotten attitude. Once I wanted to do a job search, and they said we're too busy now, come back at 3.00 p.m. So I came back at 3.00p.m. and they still wouldn't do it. That sort of thing happens all the time.

I absolutely hate going in there. It's crowded... a horrible place to be. When I rang about jobs on the boards they were always taken. Later, after I ticked 'epileptic 'on the forms, instead of giving me extra help, they just never contacted me again.

This Discussion Paper can only highlight the apparently serious inconsistency between policy and practice in the operation of the CES. A more detailed analysis of the denial of the legal right of access to the CES by people with disabilities is needed.

Conclusion

This Discussion Paper has not examined the role of:

• the Commonwealth Rehabilitation Service; or
• programs administered through the federal Department of Employment, Education and Training such as Skillshare, obstart etc.

The Commonwealth role in funding services for people with disabilities in terms of income support, legislation relating to employment conditions, and in the direct employment of people with disabilities is complex. The inconsistency between legislation, policy and practice is also evident. The possibility of enacting special legislation stating general principles and defining behaviour that is discriminatory should be examined. Legislation that gives a name and definition to such practices at least provides a standard as to what is to be seen as fair and just.

It is likely that a person with a disability will be exposed to a substantial range of Commonwealth services during his or her life. This contact could take the form of receipt of cash payments, interaction with departmental personnel, or employment in a program which is presumably guided by the Principles and Objectives of the Disability Services Act. it is important then that the Commonwealth has a consistent philosophy which underpins its service delivery; the Principles and Objectives of the Disability Services Act appear to be a sound starting point.

Barriers to Open Employment

Many factors exist which constitute substantial barriers to the ability of people with disabilities to find work in the open workforce. These include the attitude of employers to the employment of people with disabilities, the financial disincentives to open employment, the lack of what can be essential personal care in the workplace, and the indirectly discriminatory policies of some major employers. Some employment officers contacted by project workers felt that a common problem was not unemployment due to disability but underemployment and lack of advancement once in the workforce. Again, employer attitudes may be significant here.

New South Wales

A 1979 survey of employment agencies conducted by the Anti-Discrimination Board showed that in the experience of the majority of respondents, employers were found to be fairly unwilling or very unwilling to consider an applicant with a disability for a position in the employer's organisation. A total of 15.4% of employment agencies considered employers very unwilling, while a further 25.6% were found to be fairly unwilling. Only 3.8% of respondents considered employers to be very willing to hire an employee with a disability. A similar survey, conducted by the Board of Employers in the manufacturing, retail and service industries in Sydney, suggested negative employer attitudes to be a problem. Only 25% expressed themselves as willing to hire people with a disability. This is borne out by the experience of the Job Support Program, a scheme to place workers with a disability in the open workforce. This program has had some success but has also encountered many rejections from employers who seemed unable to consider an employee with a disability despite the intensive support that the employee would receive from Job Support workers. Whilst Job Support workers could not attribute this to discrimination, employer attitudes must be acknowledged as a significant factor.

Partly this attitude is reflective of the general community attitudes towards people with disabilities which seem to derive from a fear and horror of the unknown. Common community attitudes towards people with disabilities include an equation between disability and dishonesty, stupidity and even sexual perversion. Certainly it would be too optimistic to expect employers as a group to be free of the prejudices which are so common in the wider community. It may be that amendments are needed to existing legislation to render these attitudes unacceptable at law, as this does not seem to be the case currently.

Negative attitudes about people with disabilities can be attributed in part to factors other than pure prejudice. Misinformation about the relevant issues is often a problem. For example, many employers seem to be swayed by provisions under the Workers Compensation Act 1926 which render an employer liable for the exacerbation of an existing condition in an employee where the employment was a contributing factor to any such exacerbation (s.6(1)). Some employers seem to feel that people with disabilities are more likely to suffer health problems than are other employees, and would thus be a financial liability in terms of workers compensation. The 1980 Anti Discrimination Board report Discrimination and Intellectual Handicap notes the case of a woman with an intellectual disability whose employer required her mother to sign a waiver exempting the employer from liability for workers compensation. Whilst it is impossible in law for an employer to divest him or herself of this liability, this is certainly an example of a person with a disability being subjected to less favourable work conditions than would a non-disabled employee.

Employer policies may also play a part in indirectly discriminating against people with disabilities. The State Public Service may be a major culprit here. While it is recognised this service has or has had affirmative action policies and does employ people with disabilities, it has been suggested that the service's grading policies seem to prevent promotion of people with disabilities. The situation was described by one employment placement officer as 'insidious' and by another as 'a scandal'. A lack of flexibility in grading methods and duty statements seems to be at fault.

For example, a Grade 1 Officer with a hearing impairment would be prevented from advancing to Grade 2 by the fact that the duties of a Grade 2 officer include telephone work. This 'problem' could easily be overcome, for example, by an exchange of the particular duty for another duty such as additional written work. This sort of adaptation however, is not permitted. One employment placement officer related the story of a man with a hearing impairment who commenced work in the State Public Service at Grade 1 and has remained there for twenty years without advancement, watching others around him gain continuous promotion. The reason was not a lack of application or ability on the man's part since he had successfully undertaken relevant management courses at a local TAFE college. The real reason for his unacceptable stagnation was considered to be the inflexibility of duties, thus preventing his promotion to Grade 2 simply because he could not use a telephone.

Another barrier which operates to discourage workers with a disability from seeking, or remaining, in the open workforce are the many financial disincentives. The most obvious is the loss of government assistance (which is automatic for people with disabilities who become workers). All workers lose their access to the Program for Aids for Disabled People (PADP) benefits when their employment commences. The PADP scheme assists people with disabilities to purchase necessary prosthesis, aids and appliances. Given the often high costs of these items, this assistance can be invaluable. The purchase of a wheelchair alone will amount to approximately $5000. For a person in the workforce (and often on a low wage) these costs, if borne alone, can be prohibitive.

Further costs can be added by transport requirements. Many people with a disability need to make use of the Disabled Taxi Service. The Australian Quadriplegics Association estimates that, depending on the distance from home to work, the cost of using this service, even though ubsidised by the State Government, averages $100 per week. This phenomenal amount would present a difficulty to high wage earners; for those on a lower salary, the problem of transport costs must seem insurmountable.

For many people with disabilities, the effect of these substantial costs attributable to their disability would mean that they in effect pay for the privilege of working. Many would be fmancially better off to remain unemployed, and in receipt of government benefits and assistance programs. To overcome this anomaly and lessen the extraordinary disincentive to work, the Australian Quadriplegics Association has suggested that the Federal Government establish an interest free loans scheme available to people with disabilities to assist them to purchase major items such as wheelchairs. Smaller items such as bowel and bladder necessities should be available free of charge from a government supplier.

For those people who are able to drive to work, parking can be a major and expensive difficulty. Whilst most city and town councils set aside a certain number of Disabled Parking Places at shopping centres and other public places (such as Tertiary and Further Education (TAPE) colleges) these are too few and often too far away from the workplace to be of use to some employees with a disability. For many, it is necessary to rent a parking place near the workplace. This can be an extremely costly procedure, in Sydney particularly. Inner Sydney parking costs as much as several hundred dollars per month, another financial cost which is often unbearable.

Northern Territory

The employment situation in both Alice Springs and Darwin is reportedly very tight, with large numbers of transient people applying for all types of employment.

A parent in Alice Springs described the employment possibilities for her daughter as equivalent to that in any other country town. Her daughter has participated in work experience through the special unit at high school and believes that employers are not adequately prepared for the placement of a person with a disability; they don't know what to expect. She expressed concern about the limited resources to train employers and particularly the importance of consistency of training and task orientation/work skills, which have been crucial factors in deciding her daughter's future in the workforce.

'Project Employment' in Darwin commenced as a demonstration project under the Commonwealth Disability Services Program. It operates in conjunction with the Community Youth Support Scheme (CYSS) and hence offers its clients the opportunity to participate in mainstream CYSS courses. Statistics on client outcomes indicate the number of placements of people who receive services from this agency and the numbers and reasons for de-registration of clients and any terminations/dismissals from employment. This agency has experienced a reticence to employ people who have a disability, particularly those who have obvious physical disabilities. At times, there is a lack of understanding on the part of some employers as to the capabilities of their clients, which can result in an employee being given tasks beyond their existing capability or being relegated to some other menial job (such as sweeping the floor), for which they were not originally employed.

All employees receive award wages for their hours of work and some are union members in areas where compulsory union membership prevails. Although some clients have been placed in full time employment, others are working only part-time and are merely supplementing their pension with the wages earned through open employment. Three clients interviewed provided a history of repeated discontinuations in their employment.

The agency expressed concern about attempting to place clients who have some behaviour problems, as they feel that any problems presented to an employer by these people would jeopardise future employment possibilities for other clients.

South Australia

The forums held in South Australia indicated that the following priorities should be adopted in an endeavour to overcome the barriers to open employment which exist for people with disabilities:

• review the processes of agencies involved in placing people with disabilities in employment;
• community education;
• provision of employment information in different forms, not just written formats;
• affirmative action policies;
• training programs;
• advocates in places of employment;
• federal anti-discrimination legislation.

Western Australia

The Discussion Paper by the Working Party on Equal Opportunity Legislation for People with Disabilities A Fair Go for People with Disabilities considered that 'the area in which the greatest need for action was seen as that of employment'.

Many of the submissions made to the Working Party emphasised the need for community education, the need to educate employers, and the need for some people with disabilities to change their attitudes. Accordingly, the Working Party recommended:

that the Commissioner for Equal Opportunity place priority on the development of an employer-directed community education program designed to dispel the myths about employees with disabilities.

The Working Party also felt that it was important to see a greater range of incentives available to employers to take on people with disabilities. The Working Party favoured methods such as tax relief, rebates or grants rather than wage subsidies, because it was considered that wage subsidies could encourage employers to retrench workers when the subsidy period expires. The Working Party also felt that wage subsidies detracted from the principle of evaluating a person on his or her individual merits. The Working Party felt that the greatest need was to encourage employers to take on people with disabilities by alleviating any concerns about extra costs incurred as a result of modifying the workplace, providing aids, special training etc.

Other recommendations of A Fair Go for People with Disabilities relate to a range of employment options and practices. Following the Working Party's fmal report, a Bill was introduced into and passed by the WA Parliament during 1988 and the Act to amend the Equal Opportunity Act 1984 to include impairment was proclaimed in December 1988.

Major Issues and Recommendations

The information collected by project workers in NSW, SA, WA, and the NT indicates the substantial barriers that exist for people with disabilities in their attempts to secure open employment. The two key barriers are:

• employer attitudes; and
• financial disincentives.

The three key responses to these barriers are:

• community education;
• appropriate financial incentives from Federal and State/Territory governments;
• appropriate anti-discrimination legislation.

To ensure that people with disabilities have the right to economic security, useful, productive work and recognition of their individual capacities and skills, and to ensure that they can secure work in the most integrated setting possible, it is essential that Federal and State governments respond to the discriminatory practices highlighted in this chapter.

Accordingly it is recommended that:

• all federal employment programs be strongly encouraged to move towards integration;
• the Australian Public Service strengthen its commitment to equal employment opportunities for people with disabilities, and particularly explore the possibility of extending programs such as the Intellectual Disability Access Program;
• the Disability Services Program of the federal Department of Community Services and Health ensure that all employment services funded under the Disability Services Act comply with the Principles and Objectives of that Act, particularly in view of the widespread discriminatory practices evident in most sheltered workshops;
• the Principles and Objectives of the Disability Services Act be adopted by other federal departments providing funds or services for people with disabilities;
• in view of the report Towards Enabling Policies, the federal department of Social Security consider restructuring the arrangements which provide income support for people with disabilities;
• the legal status of workers in sheltered workshops be determined at law, thereby clarifying the coverage, if any, of such workers under workers compensation legislation;
• Federal and State Governments explore options for providing financial incentives to employers who are to employ people with disabilities;
• official recognition be given to the right of people with disabilities to economic and social security, and
• appropriate anti-discrimination legislation be enacted by Governments in those jurisdictions without such specific legislation.

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