Improving the employment
participation of people with disability
in Australia
ACTU Response to Ministerial Inquiry
22 February 2013
D No. 10/2013
Table of Contents
INTRODUCTION ....................................................................................................................................... 3
The need for a holistic approach ............................................................................................................ 4
A reporting mechanism is only the first step .......................................................................................... 4
RECOMMENDATIONS ............................................................................................................................. 5
WHY REFORM IS NEEDED ....................................................................................................................... 6
Barriers to employment ...................................................................................................................... 6
OPTIONS TO IMPROVE THE EMPLOYMENT OF PEOPLE WITH DISABILITY ............................................. 9
The benefits of an employment equity scheme ................................................................................. 9
Managing employer objections ........................................................................................................ 10
Whom the scheme should apply to .................................................................................................. 11
Defining disability.............................................................................................................................. 12
Proposed structure ........................................................................................................................... 14
Consultation, flexible work and reasonable accommodation .......................................................... 15
Regulation and oversight .................................................................................................................. 16
Privacy and disclosure ....................................................................................................................... 17
SUMMARY ............................................................................................................................................. 18
[2]
INTRODUCTION
1.
The ACTU is the peak body representing 47 unions and almost two million working
Australians. We welcome the opportunity to provide a submission to this inquiry into
increasing employment opportunities for people with disability.
2.
The union movement has been a longstanding advocate of disability reform, since the
adoption of the Disabled Workers Charter at the ACTU Congress in 1981. Unions are aware of
the importance of assisting workers with disability to participate in the paid workforce. All
workers, including those with a disability, should be able to benefit socially and economically
from meaningful and secure employment.
3.
Participation in the workforce through paid employment can enhance the lives of people with
disabilities and enable them to more fully participate in the community. Increased labour
market participation can also bring significant benefits to the economy by opening up a wider
range of skills and experiences, and through increased tax revenue.
4.
However, these benefits can only be fully realised by increasing the employment participation
rate of people with disability. Almost one in five working age Australians are reported to have
a disability, and of these, only around 54% are in paid employment, compared to an 83%
participation rate for workers without a disability. Employment participation rates for
Australians with a disability have not improved since 2003, despite the fact that participation
rates more generally have improved as the economy has strengthened. Moreover, although
the unemployment rate for workers with disability has dropped 10% (from 17.8% in 1993 to
7.8% in 2009), it still remains disproportionately high when compared to non-disabled
workers.1
5.
The principle of decent work underpins our approach to improving employment participation
of workers with disability. Decent work is work that is inclusive and provides workers with a
safe, fair and friendly workplace, fulfilling social interactions, freedom, dignity, opportunity
and economic security. The decent work agenda was adopted by the International Labour
Organization (ILO) in 2002, and further endorsed by the ACTU and our affiliates at our 2009
Congress. It recognises the central role of work in people’s lives and that the quality of work is
crucial to a fair and equal society. We believe that working life should promote social inclusion
by engaging people within their communities, cultivating self-esteem and self-efficacy,
enabling financial independence, and improving physical and mental health outcomes. These
values underpin our approach to improving employment participation of workers with
disability and inform our responses to this submission.
1
ABS Cat. 4102.0. ‘Disability and Work’, Australia Social Trends, March Quarter 2012
[3]
The need for a holistic approach
6.
In line with the terms of reference for this inquiry, we have confined ourselves to discussing
ways to improve employment outcomes for workers with disability. However, we note that
many of the employment barriers that apply to workers with disability apply equally to other
disadvantaged groups. The ACTU has been a strong supporter of reporting mechanisms for
other groups facing barriers into employment, and has previously advocated the introduction
of reporting mechanisms for women and for mature age workers. However, we are concerned
that a piecemeal approach is not the best way to tackle entrenched disadvantage within the
labour market. Although any improvements in this area would be better than none at all, it
would be far more effective if the government were to commit to a broader ranging inquiry
into labour market disadvantage, encompassing the employment outcomes of women,
mature age workers, workers with disability, Indigenous Australians and visible minorities.
This is in recognition of the fact that there are many different groups that face barriers to
employment. The government has already accepted that women’s participation in the labour
market can be improved through the introduction of gender reporting. The same argument
applies equally to a range of groups facing barriers to employment and who require special
accommodations to ensure their full participation. A holistic approach would be more
effective in improving employment participation and would also cut down on unnecessary
duplication of government resources.
A reporting mechanism is only the first step
7.
The focus of the terms of reference for this inquiry is on whether the government should
introduce a reporting mechanism for workers with a disability. The ACTU supports the
introduction of such a mechanism, but we believe that reporting is only part of the solution,
and should be supported by a range of other equal opportunity policies and practices as part
of an employment equity scheme. This would include the introduction of voluntary
employment targets for businesses; further requirements for businesses to consult with their
employees; and requirements for businesses to have in place an employment equity plan
detailing their policies and procedures to improve workplace participation. The employment
equity scheme should be overseen by a properly resourced regulatory body. There is also a
place for unions to be involved in workplace consultations and assisting in the enforcement
process.
[4]
RECOMMENDATIONS
8.
In order to remove barriers to employment and improve employment participation rates
within Australia, the ACTU recommends:
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
A broader ranging inquiry into improving employment outcomes for a range of
disadvantaged groups who face barriers to employment
The development of an employment equity scheme for workers with disability, as part
of a broad range of policies and practices to address barriers to employment
Mandatory reporting of key indicators derived from a workforce analysis, incorporating
quantitative data around workforce composition and remuneration
A requirement for employers to develop an employment equity plan detailing the
business’s recruitment, retention and promotion policies; flexible work and reasonable
accommodation plans; training and career development opportunities; and privacy and
anti-discrimination policies
Voluntary recruitment targets for workers with disability
A requirement for employers to introduce consultation mechanisms to address
concerns or issues around the implementation of their workplace policies and
procedures
Involvement of unions in consultation and enforcement of the employment equity
scheme
Including the public sector in any reporting mechanism to ensure it is leading the way in
employing workers with disability
Realigning legislative provisions around reasonable adjustment to ensure that workers
aren’t disadvantaged through the introduction of employment equity mechanisms
Improvements to the right to request flexible working arrangements, including an
obligation on the employer to prove they have properly considered a request, and a
right of appeal where employers have not done so
[5]
WHY REFORM IS NEEDED
Barriers to employment
9.
People with disability are one of a number of groups within society that experience specific
disadvantage and difficulty in accessing employment. These barriers to employment cannot be
resolved merely by treating all workers the same way; it is only through governments and
employers providing additional support and systematic intervention that these conditions of
disadvantage can be overcome.
10.
ABS statistics indicate that difficulty in accessing childcare, lack of suitable vacancies, or no
jobs with suitable hours all act as barriers to workers finding paid employment.2 Health issues
can also restrict the amount or type of work that people with disability can engage in, and
perhaps unsurprisingly, the participation rate decreases according to severity of the disability.3
Unions are also aware that appropriate access to community services such as adequate public
transport and health services can make a big difference in labour market participation rates,
particularly for workers with disability who may have particular support needs. In a recent
National Disability Agreement report, it was found that 34.3% of people with a disability
needed more formal assistance than they were receiving.4 The participation costs for workers
with disability are higher than for those without – transport costs, personal care, aids and
appliances costs can all act as a barrier to participating within society, including in paid
employment. Better funding for community programs and services can therefore lead to
major improvements in the capacity for people with disabilities and other disadvantaged
groups to more fully engage in their communities.
11.
Negative attitudes and stereotypes can act as a major barrier to the employment participation
of people with disabilities,5 who often feel stigmatized and discriminated against.6 In ACCI’s
report Employ outside the box: The rewards of a diverse workforce, the employer group
acknowledges the need to “dispel the myths of employing people from disadvantaged groups
as well as promoting the economic and business advantages of diverse employment
practices.”7 Research indicates that people with disabilities are perceived to be more accidentprone, more likely to be absent from work due to illness, and less productive than workers
2
ABS Cat. 4102.0. ‘Disability and Work’, Australia Social Trends, March Quarter 2012
Ibid.
4
COAG Reform Council, ‘Chapter 3. Enjoying choice, well-being and independence’, Disability 2010-11:
Comparing performance across Australia, 2011. Accessed at
http://www.coagreformcouncil.gov.au/reports/docs/disability_10-11/Disability_2010-11-EnjoyingChoiceWellbeing.pdf
5
Sally Lindsay, ‘Discrimination and other barriers to employment for teens and young adults with disabilities’,
Disability and rehabilitation, 2010.
6
Cecilia Benoit , Mikael Jansson , Martha Jansenberger & Rachel Phillips. ‘Disability stigmatization as a barrier
to employment equity for legally-blind Canadians’, Disability & Society, 2012
7
Australian Chamber of Commerce and Industry, Employ outside the box: The rewards of a diverse workforce,
February 2012, p. 16. Accessed at http://acci.asn.au/getattachment/1d9163c5-f634-4126-9e90ae73d810f1bc/Employ-Outside-the-Box.aspx
3
[6]
without disability.8 However, ironically, the opposite is in fact true, with evidence indicating
that workers with disability are actually less likely to be involved in a workplace accident and
less likely to take time off work due to illness.9
12.
Workplace policies and processes can indirectly discriminate by unfairly disadvantaging those
with disabilities. According to the Shop, Distributive and Allied Employees Association (SDA):
It is the Associations’ experience that employers like to make generic
policy decisions about job descriptions, safe work practices and task
analysis which fail to adapt to the needs of individuals with disabilities.
This becomes a problem when an individual needs reasonable
adjustments made in order to function in the workplace, yet the
employer is wedded to a tasks analysis which is inflexible and
discriminatory.10
13.
Businesses that rely on traditional recruitment methods could overlook workers with disability
in imposing a selection bias towards workers without disability, or employers may be unaware
about the level of funding and support available to them to accommodate an employee with
disability.11 A lack of flexible, part-time work can also act as an impediment to engaging
workers with disability.12
14.
Unions are aware of instances where negative employer attitudes are directly responsible for
workers with disability being managed out of their position or in other ways treated
unfavourably compared to other employees. For example, one case brought to the attention
of the SDA involved an employee who had been employed at a department store for 38 years
as a door greeter. In this position he had always walked with a limp, but had never had any
issues in carrying out his duties. After being asked repeatedly when he was going to retire, the
company demanded that he provide a medical certificate to state that he was fit for work. He
refused to provide one on the basis that he had been performing his work without issue for 38
years, and therefore felt it was an unreasonable request designed to ‘manage him out’ of his
employment. His HR manager then told him he would be required to move and unpack cages;
one of the heaviest jobs in the store. At this point the worker left the company.13
8
Elissa Perry, W. Hendricks & E. Broadbent, ‘An exploration of access and treatment discrimination and job
satisfaction among college graduates with and without physical disabilities’, Human Relations, 52(7), 2000, p.
923–955.
9
Deloitte Access Economics, The economic benefits of increasing employment for people with disability.
Commissioned by the Australian Network on Disability, August 2011
10
Shop, Distributive and Allied Employees Association, ALRC – Barriers to Work for Mature Aged Workers
(submission), November 2012. Accessed at: http://www.alrc.gov.au/sites/default/files/subs/84.sda_.pdf
11
R Pernice & N Lunt, International Research Project on Job Retention and Return to Work Strategies for
Disabled Workers, International Labour Organization, Geneva, 1998.
12
A Gray, A Survey of Women with Disabilities: Employment and Training Experiences, New Zealand
Employment Service, Wellington, 1993
13
Shop, Distributive and Allied Employees Association, ALRC – Barriers to Work for Mature Aged Workers
(submission), November 2012. Accessed at: http://www.alrc.gov.au/sites/default/files/subs/84.sda_.pdf
[7]
15.
In another instance, a hairdressing salon discriminated against a physically disabled employee
who had some spinal damage due to a bike accident. The salon paid him less than $10 an hour
for his work, despite his being a qualified hairdresser, giving his ‘medical condition’ as the
reason for the underpayment. The underpayment was discovered when the employee
complained to the Fair Work Ombudsman and the salon was fined, as well as being forced to
back pay the employee.14
16.
In a third case, again brought to our attention via the SDA:
A long term member/employee had rung through to her work and
stated that she recently had an unexpected seizure. Initially her
employer was acceptable with this and on the member’s return to
work accommodated her return to her normal duties. Another seizure
occurred this time at work and this time the employer was not as
accommodating with her work duties. The employer then was making
moves to dismiss our member based on the duty of care argument
that is to ensure the health of the employee. The Secretary suggested
that we make contact with the Epilepsy Association who supported
our view that it was discriminatory to dismiss someone based on a
disability. A representative of the Epilepsy Association attended a
meeting with the Employer and the organiser and stated it was
discriminatory to place our member in job roles where she was highly
likely to fail based on the epilepsy disability and a resolution was made
to place the member purely in an administration role.
The member is successfully working in her administration role with no
known further incidents.15
17.
These cases suggest that employer attitudes, stereotypes and workplace policies and
procedures are a real and significant barrier to employment participation for many workers.
14
Fair Work Ombudsman, Employer fined over disability discrimination (media release), August 2011. Accessed
at: http://www.fairwork.gov.au/media-centre/media-releases/2011/08/pages/20110809-border-barberpenalty.aspx
15
Shop, Distributive and Allied Employees Association, ALRC – Barriers to Work for Mature Aged Workers
(submission), November 2012. Accessed at: http://www.alrc.gov.au/sites/default/files/subs/84.sda_.pdf
[8]
OPTIONS TO IMPROVE THE EMPLOYMENT OF PEOPLE WITH DISABILITY
18.
If we are to improve the employment participation outcomes of workers with disability, we
must do more to change employer attitudes, stereotypes and workplace policies that act as a
barrier to employment. There is more that governments can and should be doing to further
this aim. The best way to improve the diversity of the workforce is to give people with
disability equal access and opportunity of employment. In essence, this means that employers
need to recruit more people with disabilities and they also need to be more inclusive and
consultative to those workers with disability already in employment. The best way to achieve
this is through a broad-based approach that incorporates a range of special legislative and
regulatory measures designed to improve employment outcomes. In this section, we propose
an employment equity scheme that incorporates voluntary employment targets; disability
reporting; changes to legislation; and mandated employer policies and practices.
The benefits of an employment equity scheme
19.
The ACTU supports a mandatory disability employment disclosure arrangement as part of a
broader suite of reforms to improve employment equity. There is a real lack of knowledge
around the workforce composition of people with disabilities, beyond the general statistics
collected by the ABS. If the government is going to improve participation rates, it first needs
to understand the extent of the problem within particular business types and industries.
Employment reporting can assist with this by providing businesses and governments with
baseline data that they can use to study areas of strength and possible avenues for
improvement. This would allow businesses to measure their own progress against the rest of
their industry. It would also assist in the government’s future workforce planning to have
meaningful, comparative data on businesses and industries that have been successful in
including workers with disability, and those that need further assistance. The information
arising out of a reporting mechanism could then be used in government decision-making over
resource allocation for particular programmes.
20.
A disability reporting mechanism, in conjunction with changes to workplace processes,
strategies and targets, would ensure that workers with disability aren’t denied employment
opportunities because of their disability, and would assist in correcting the conditions of
disadvantage that unfairly block them from further opportunities for advancement. This is in
line with the basic principle that, in order to correct disadvantage, employers must not only
treat all employees the same way but must also introduce special measures to overcome
systemic barriers to employment participation.
21.
The employment equity scheme could be based on a similar scheme for improving the
employment participation of women in the workplace that is currently overseen by the
Workplace Gender Equality Agency, as well as the Canadian model that has been in place
since 1995 and which provides for equal opportunity to four designated groups: women,
Aboriginal peoples, workers with disabilities, and visible minorities.
[9]
22.
Disability reporting would provide employers with a framework to identify internal practices
and procedures that serve to maintain a diverse workforce. Having better data collection
could also assist employers and employees to contextualise their targets and achievements,
and allow businesses to situate their own employment practices against other businesses.
23.
By encouraging more businesses to review their disability recruitment practices and progress,
it can be expected that more employers will put in place recruitment practices that encourage
people with disabilities to enter the workforce. This could reasonably be expected to boost
participation rates for people with disability. An employment equity scheme would also
benefit existing workers by facilitating greater consultation between employers and
employees as they work together to improve the workplace so that it can be made more
suitable for the needs of those with disabilities.
Managing employer objections
24.
There is a risk that employers may not understand how such a scheme would operate or may
have misplaced concerns about the impact of such a scheme on their business. A common
employer complaint is that such schemes could lead to an increase in red tape or
administrative burdens on the organisation. However, any such burden is likely to be minimal.
This is because under the Fair Work Regulations s3.31-3.44, employers are already required to
keep and maintain extensive employment records, including as to whether an employee is full
time, part time or casual; their rate of remuneration; the gross and net amounts paid to each
employee; and any additional incentives, bonuses, loading or allowances they receive.
Moreover, administrative costs could be effectively minimised by rolling this scheme into the
existing gender reporting requirements that apply to all businesses with at least 100
employees. The government should work closely with key stakeholders, including unions and
employer associations, to illustrate to businesses the benefits that a reporting mechanism and
broader employment equity plan would bring to their business. The government could
provide templates, best practice guides, and an employer hotline to assist employers to meet
their reporting obligations.
25.
A further concern of many employers might be the worry that opening up their workplaces to
people with disability could require the employer to buy expensive equipment or
modifications. There are a number of schemes, grants and incentive programs already in place
to assist employers to meet the costs of workplace modifications. Employers should be
educated on the availability of these incentives and the scheme should be better resourced
and supported in the event of increased demand.
[10]
Whom the scheme should apply to
26.
Eventually, our vision is for a wide-ranging employment equity scheme that would apply to a
range of groups that have been identified as experiencing disadvantage in the workplace. This
should be subject to further research, but as a starting point, could apply to women, workers
with disability, mature age workers, visible minorities and Indigenous Australians.
27.
Ideally, all businesses should have in place employment equity policies and procedures to
improve their employment participation rates for workers facing barriers to employment. To
begin with, it may make sense to bring the disability scheme in line with the gender reporting
requirement and only make it a requirement for businesses with more than 100 employees to
report. In time the government should consider including employers with fewer than 100
employees, perhaps with a simpler and more streamlined reporting process for smaller
businesses. In the meantime, where appropriate smaller businesses should be encouraged to
submit reports and there could be some sort of recognition process set up for small employers
who voluntarily submit reports. This may, for example, take the form of a self-audit checklist
or similar mechanism that would assist smaller businesses to self-identify areas of
improvement and track their progress against organisations of a similar size. Larger employers
with more than 100 staff would face additional requirements to report on their workplace
diversity policies and practices as part of their annual report, and to submit a report on their
outcomes against key indicators on an annual basis.
28.
The scheme should encompass workers within both the public and private sectors. The
participation rate for workers with disability in the public sector is very low, and has declined
substantially over the past decades, from 6.6% of public servants in 1986, down to 5% in 1999
and just 2.9% in 2012.16 The Australian Public Service Commission has already developed
guidelines around best practice and appropriate training, as well as monitoring the number of
workers with disabilities within the APS. It would therefore be relatively easy to align the
existing reporting mechanism with a more comprehensive workplace diversity scheme. This
would allow the public service to lead by example, and act as a model employer for other
businesses to follow.
16
Australian Public Service Commission, State of the Service Report 2011-12, 2012. Accessed at:
http://www.apsc.gov.au/__data/assets/pdf_file/0010/10621/1217-State-of-the-Service-2011-12lr-v2.pdf
[11]
Defining disability
29.
There are a number of workable definitions of disability that the government could draw upon
for the purpose of establishing an employment equity scheme. Due to advances in medicine
and technology, it is now possible to treat and manage more conditions than was possible in
the past. As a result, the nature of disability is changing, with more people than ever before
able to live full and productive lives while managing their disability.17 Therefore, disability is
not always evident and it can be difficult to perceive or define. The main definition in current
usage in Australia is that contained within the Disability Discrimination Act (DD Act). This
states that a disability is:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
total or partial loss of the person’s bodily or mental functions; or
total or partial loss of a part of the body; or
the presence in the body of organisms causing disease or illness; or
the presence in the body of organisms capable of causing disease or illness; or
the malfunction, malformation or disfigurement of a part of the person’s body; or
a disorder or malfunction that results in the person learning differently from a person
without the disorder or malfunction; or
a disorder, illness or disease that affects a person’s thought processes, perception of
reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
presently exists; or
previously existed but no longer exists; or
may exist in the future (including because of a genetic predisposition to that disability);
or
is imputed to a person.
30.
Unfortunately, this definition of disability draws upon an out-dated medical model that
assumes that a person’s disability is solely caused by a physical impairment or medical
condition, which underpins an assumption that disability is an internal condition, rather than
an external one.
31.
Many researchers argue that disability is a social construct, merely arising as a result of
societal restrictions that act as a barrier to social inclusion.18 From this perspective, disability
is more the result of environmental or social factors rather than something internal to a
particular individual.
32.
Therefore there are limitations to the definition as it is currently worded under the Disability
Discrimination Act.
17
18
Department of Education and Training, Case studies of employees with a disability, 2005
Ibid.
[12]
33.
There are several international examples that the government could draw upon for a more
comprehensive and up-to-date definition of disability. For example, the International Labour
Organisation in its code of practice on managing disability in the workplace defines a disabled
person as “an individual whose prospects of securing, returning to, retaining and advancing in
suitable employment are substantially reduced as a result of a duly recognized physical,
sensory, intellectual or mental impairment”.19
34.
The United Nations Convention on the Rights of Persons with Disabilities, to which Australia
has been a signatory since 2007, provides a more comprehensive definition. The UNCRPD
draws upon a social model of disability that emphasises the social barriers that result from
society’s inability to effectively manage impairment. In their definition, people with disability
are:
those who have long-term physical, mental, intellectual or sensory impairments
which in interaction with various barriers may hinder their full and effective
participation in society on an equal basis with others.20
35.
Another useful definition is contained within Canada’s Employment Equity Act, which defines
persons with disabilities as:
persons who have a long-term or recurring physical, mental, sensory, psychiatric or
learning impairment and who
(a) consider themselves to be disadvantaged in employment by reason of that
impairment, or
(b) believe that an employer or potential employer is likely to consider them to be
disadvantaged in employment by reason of that impairment,
and includes persons whose functional limitations owing to their impairment have
been accommodated in their current job or workplace.21
36.
This definition is a useful example of acknowledging both the physical and social causes of
disability. The government should consider drawing upon both the Canadian model and the
UNCRPD in developing a more comprehensive definition of disability than that which is found
in the Disability Discrimination Act.
37.
Any definition used for a disability employment disclosure arrangement should make clear
that there is an element of social construction inherent in defining disability, and that what is
or isn’t disability is largely based on perceptions and external barriers. This has a practical
impact on how disclosure should be managed; since the concept of disability is largely a
matter of perspective, it is important that any definition allows for the individual to selfidentify as disabled or not, since it is for the individual to decide whether any medical
19
International Labour Organisation, Managing disability in the workplace: ILO code of practice, 13 February
2002.
20
Article 1, United Nations Convention on the Rights of Persons with Disabilities
21
Section 3, Employment Equity Act, Canada, 1995
[13]
condition they might have acts as a barrier to participation due to social or environmental
factors. This means that employees who do not consider themselves to be disadvantaged in
their workplace due to an impairment would not need to disclose their disability and
therefore would not be counted under a disability disclosure arrangement.
Proposed structure
38.
The Workplace Gender Equality Act (WGE Act) acts as a useful starting reference for the key
indicators that employers should report on in an employment equity scheme. The WGE Act
requires employers to report on a range of quantitative data, including workplace composition
(i.e. the number of staff employed at the business, including those at senior levels);
composition of governing bodies (e.g. boards or committees of management); total
remuneration payments; the availability of relevant terms, conditions and practices relating to
flexible working arrangements for employees; and any consultation mechanisms available to
employees. A similar model could be applied to workers with disability. However, we believe
that these indicators could be further improved. In particular, we would recommend including
further requirements around access to training and career development opportunities and
around the development of workplace policies and procedures that do not unfairly
discriminate against workers with disabilities.
39.
The Canadian Employment Equity Act (the EE Act) provides a useful guide in the development
and structure of an Australian scheme. The EE Act requires all employers to conduct an
analysis of the workforce to determine the degree of underrepresentation of the particular
designated groups, namely women, visible minorities, indigenous Canadians, and people with
disabilities. Employers must then develop an employment equity plan that specifies the
policies and practices in place to ensure equal opportunity in recruitment, training, promotion
and retention. It also requires employers to develop a policy around the reasonable
accommodation of workers with particular workplace needs. In Canada, employers must
identify their own short-term numerical goals or targets for recruitment purposes, and also
outline their longer term goals and strategies for increasing workforce participation. These
goals and targets are set by the employer but must be disclosed as part of their reporting
requirements.
40.
Our employment equity scheme should follow Canada’s lead by requiring employers to report
on their own voluntary recruitment and retention targets. These could be based on
benchmarking best practice among top performing businesses and employers of choice who
have demonstrated a high level of success in employing workers with disability. These
voluntary targets could act as a guide for employers who are unsure as to what they are
aiming for or how to achieve improved participation rates.
[14]
Consultation, flexible work and reasonable accommodation
41.
One of the major issues confronting workers with disability is how to have their disability
reasonably accommodated by their employer. As part of an employment equity scheme, the
government should require employers to detail their workplace policies and procedures
around consultation, flexible work and reasonable accommodation.
42.
One of the most common issues that workers with disability raise with our affiliates is their
difficulty in accessing reasonable accommodation in their workplace. For example, the NSW
Nurses and Midwives’ Association has told us:
The Association’s industrial team frequently assists members with disabilities in
seeking reasonable adjustment to enable them to continue working in nursing.
One of the issues that regularly arises is how employers can accommodate members
who, because of their disability, can only work particular shifts; for example,
members with epilepsy often request not to work particular shifts because it
adversely affects the effectiveness of their medication, hearing impaired nurses may
request particular shifts which best suit their circumstances, members with back
injuries often request evening or night shifts because they are not as physically
demanding as day shifts.
Where there is minimal staffing or skill mix issues in, for example, a ward in a public
hospital, the Nursing Unit Manager responsible for rostering staff may genuinely
consider how to accommodate a nurse with a disability working a particular shift but
not be able to do so due to a lack of resources – which potentially results in the nurse
leaving to seek non-nursing employment to accommodate his/her disability.22
43.
22
Any employment equity legislation that the government introduces should contain provisions
that require employers to make reasonable adjustments for workers with disability. The
current provisions around reasonable adjustments for workers with disability are inconsistent.
For example, the Fair Work Act provides an exemption that allows employers to discriminate
against a worker if they are deemed not to meet the ‘inherent requirements of the job’. There
is concern among a number of unions that this provision is being used to ‘manage out’
employees with disability, as, for example with the case of the door greeter discussed in an
earlier section of this submission. The Fair Work Act contains no provision to require
employers to make reasonable adjustments to the workplace so that workers can meet the
inherent requirements of the job. By contrast, the Disability Discrimination Act does require
employers to make reasonable adjustments to assist employees to meet their requirements.
However, the ‘reasonable accommodation’ provisions under the Disability Discrimination Act
are currently limited, in that it allows employers to refuse an employee’s request for
reasonable accommodation on ‘business grounds’, and there is no requirement for the
employer to justify their decision. This means that there is no transparency for the employee
when their request is refused. To deal with these limitations and inconsistencies, the Disability
Discrimination Act, Fair Work Act, and employment equity legislation should all be aligned and
NSW Nurses and Midwives’ Association, email comments to the ACTU’s submission (unpublished)
[15]
should contain provisions requiring the employer to make reasonable adjustments to the
workplace to accommodate disabilities. Where the request is refused, the employer should
provide evidence as to why a disability cannot be accommodated on business grounds. The
employer’s workplace accommodation policy should form part of its reporting requirement
under a disability reporting scheme.
44.
The employer should also have in place a consultation policy detailing how they will consult
with workers with disability to ensure that any systematic barriers to employment and
appropriately recognised and managed. Union representatives should be invited to take part
in any consultations.
45.
We welcome the government’s recent decision to expand the right to request flexible working
arrangements to a wider range of workers, including those with disability. The flexible work
provisions could be further improved by allowing workers who have been unreasonably
refused to appeal their employer’s decision with the Fair Work Commission. The provisions
could be strengthened by requiring employers who have refused a flexible work arrangement
to provide the employee with some evidence as to the business requirement that prevents
them from granting the request. These improvements could be expected to assist workers
with disability to participate in employment by giving them a stronger right to flexible work
that can better meet their particular needs. An employer should provide a copy of their
flexible work policy as part of their employment equity requirement, and should report on
how many of their employees are engaged in a flexible work arrangement.
Regulation and oversight
46.
Without regulation and oversight through a properly resourced regulatory agency, the
proposed disclosure mechanism risks becoming a toothless tiger. In order to avoid this
possibility, sanctions should be put in place for employers who consistently fail to meet their
reporting requirements. As an example, such employers may be blocked from tendering for
government contracts. It is expected that any regulatory body charged with overseeing the
employment equity scheme would use a mix of responsive regulation tools, including
education and assistance, as well as investigations and sanctions. The relevant agency
responsible for overseeing the scheme should be properly resourced so that they can follow
up with businesses who have not met their reporting requirements. Businesses who
repeatedly fail to submit their report should be publicised on the agency’s website.
47.
Unions can also be used as a valuable resource to ensure that the legislation is properly
enforced. There should be a mechanism within the reporting scheme for unions to report to
the agency in cases where it has been made aware by its members of instances where the
business fails to act in accordance with its own diversity policy. This information could then be
taken up by the agency and form part of its decision making as to whether a particular
business has met its obligations.
[16]
48.
The most practical way to achieve proper oversight of the disability reporting mechanism
would be to expand the mandate of the Workplace Gender Equality Agency. Down the track,
the expanded agency could also oversee a broader ranging employment equity scheme for
other key disadvantaged groups such as mature age workers, visible minorities and Indigenous
Australians.
Privacy and disclosure
49.
Under the Disability Discrimination Act, workers only need to disclose their disability to an
employer if they require reasonable adjustments to be made in the workplace. Once an
employer is made aware that an employee has a disability, they do have a legal right to ask
questions about the disability, but only as it relates to the employee’s requirement for
reasonable adjustments. However, employers would be in contravention of the DD Act if they
discriminate either directly against that employee, by treating them less favourably, or
indirectly, by having in place a practice or process that applies to all employees but that treats
a worker with disability less favourably. An example of this would be holding staff meetings in
a building with no wheelchair access, if a staff member were in a wheelchair. Employers also
have an obligation under the DD Act to prevent harassment of employees with disability.
50.
Unfortunately, some employers are overstepping boundaries when it comes to the
information they expect workers to disclose. According to the SDA:
In recent years it would seem that employers believe they have an unequivocal right
to know anything and everything about a prospective or current employee. It would
appear that the line between a work life and a private life is becoming increasingly
blurred. It is our experience that employers are demanding, and getting access to, a
whole range of personal information which can, and is being used for discriminatory
purposes. This is particularly true in regard to disability, with requests for personal
health information and testing.23
51.
To avoid infringing on workers’ privacy, the legislation for a disability reporting arrangement
should specify that only those employees who self-identify to their employer, and agree to
have their disability disclosed through the reporting mechanism, should be counted in the
workforce analysis. All information collected by the employer for the purpose of reporting
should also be kept confidential. It is understood that not all workers with an impairment or
medical condition would self-identify as having a disability, and therefore reported figures are
expected to be lower than the actual prevalence of disability in any workplace.
23
Shop, Distributive and Allied Employees Association, ALRC – Barriers to Work for Mature Aged Workers
(submission), November 2012. Accessed at: http://www.alrc.gov.au/sites/default/files/subs/84.sda_.pdf
[17]
SUMMARY
To summarise, an employment equity scheme should contain the following requirements and key
indicators:

A requirement for the employer to conduct a workforce analysis, which should include
reporting on:
o Workforce composition
o Composition of governance structures
o Remuneration levels

A requirement for the employer to develop an employment equity plan that outlines:
o A recruitment plan detailing how the employer will specifically target workers with
disability for recruitment, including a voluntary recruitment target set by the
business in line with their needs and requirements
o A reasonable accommodation plan outlining how the employer will accommodate
any requests for special assistance or adjustments
o A flexible work plan to illustrate any policies and procedures allowing workers with
disability to work part time or from home
o A retention and promotion plan to show how the business will deal with these issues
o A training and career development plan to ensure that workers with disability don’t
miss out on these opportunities and are actively encouraged to develop their
professional skills
o An anti-discrimination policy detailing how instances of disadvantage or
discrimination will be dealt with by the employer
o A privacy and disclosure plan detailing the employer’s approach to maintaining the
confidentiality of workers who self-disclose their disability

A requirement for the employer to consult with workers with disabilities, relevant union
representatives, and the rest of the workforce in developing their employment equity plan
and addressing any issues or concerns arising from the implementation of that plan.

A requirement for the employer to report on the implementation of the above policies,
including statistics on the number of workers accessing flexible work arrangements,
professional development and training opportunities, promotions and workplace
modifications
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