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The DDA and employment of people with a disability

Disability Disability Rights

The
DDA and employment of people with a disability

Chris
Sidoti
Human Rights Commissioner and Acting Disability Discrimination
Commissioner

South
Australian Employment Placement Association breakfast meeting
26 September 1998

Chris Sidoti

The
standard sort of speech that is often delivered by people in my sort of
position at this sort of event is a combination of pep talk and pamphlet,
with some bits of a law lecture thrown in: telling people with a disability
and their advocates that they have rights under discrimination law, and
telling employers that they have responsibilities, and attempting to set
out the terms and the effect of the provisions of the Disability Discrimination
Act (or "DDA"). Add some exhortation to complain if you have
grievances and to comply if you have responsibilities, with some description
of how hard and how effectively the Commission is working to perform its
complaint handling and other responsibilities under the Act, and everyone
can go away feeling full, if not necessarily satisfied.

I don't
propose to give that standard sort of speech today.

Some
of you will have already heard similar speeches on previous occasions,
and I don't think it would be a good start to my day or yours to put an
audience to sleep at 8 o'clock in the morning.

Large
and increasing amounts of information on the Commission's interpretation
of the DDA is available in the disability rights section of our Internet
site (www.hreoc.gov.au) or in other formats on request.

This
includes a very substantial "frequently asked questions" on
employment, which updates and expands on the advice and opinion contained
in the "Employer Manual" issued back in 1994, but which also
draws on case law, complaint handling and other experience since then.

Less
and less, I think, is it necessary or justified for someone in my position
at public events to act as a "talking pamphlet" - or even a
talking web site. More and more, as the staff and financial resources
available to the Commission are restricted compared to the needs and demands
we seek to address, but also as the potential offered by technology for
effective dissemination and exchange of information expands, I think we
should all be trying to extract every last possible drop of value from
face to face events like this in real discussion and debate, not just
repetition of information available elsewhere. (Of course I am happy to
take questions and requests for more specific information here this morning.)

So
in talking about the DDA and employment of people with a disability, I
want to offer some reflections and I hope spark up some debate on where
we are and where we are going. I also want to offer some thoughts which
are not anything like finally decided policy yet, and which might well
change depending on comments we receive. I don't believe that the proper
relationship between a statutory authority like the Commission and non-government
organisations - least of all in the area of human rights - is for us to
come to pronounce eternal truths and announce immutable decisions and
then go away again.

Work
on the development of the DDA started in 1991 as part of a national strategy
to achieve equal employment opportunity. National legislation on disability
discrimination in employment was one of the major recommendations of the
Labour and Disability Workforce Consultancy report which some of you may
remember as the "Ronalds Report".

The
passage and existence of legislation was not seen then and should not
be seen now as an end in itself. It was and is an investment by government
and the community intended to pay dividends in large scale social change
towards a more equal society.

The
initial intention of the federal government of the time was only to legislate
on employment.

The
Commission and disability community organisations argued that legislation
covering employment by itself would have very little impact even on the
employment area itself. What use, we said, is a theoretical right to
equal employment opportunity if a person with a disability:

  • does
    not have equal opportunity in education to gain skills and knowledge
  • does
    not have accessible transport to get to work
  • cannot
    get into the workplace because the built environment is inaccessible
  • cannot
    use the telecommunications system and other modern information and communications
    systems that are an increasingly important part of work.

Equal
opportunity in work is not only a matter of attitudes and practice in
the workplace itself. It depends on equality in these important pieces
that work is made up of - skills formation, accessible communications
and information systems, accessible premises, accessible transport and
so on.

Over
five years into the operation of the DDA, it is time for reflection on
how well the strategies embedded in the DDA have worked.

The
first thing to say is that there has been no formal or large scale evaluation.
Service provision organisations - in employment placement and other areas
- often seem to be subject to much more direct outcome evaluation and
accountability measures than major legislative and policy initiatives.

We
do not have comprehensive evidence on the effectiveness of the DDA and
its State and Territory equivalents in achieving the objective of elimination
of discrimination in employment. But I think that a frank assessment requires
saying that such evidence as exists is not encouraging:

Overall
employment rates for people with a disability do not appear to have been
improved markedly since the passage of the DDA.

Representation
of people with a disability within Commonwealth employment has in fact
decreased, as indicated by the Australian National Audit Office in its
report Equity
in Employment in the Australian Public Service
.
Now, the APS may not be typical of all employment in Australia, but that
is not a very positive sign.

Can
we say that there is evidence that employment discrimination laws have
at least made things better than they might otherwise have been, in the
face of difficult and changing labour market conditions, even if they
haven't produced absolute improvements in representation of people with
disabilities?

Maybe they have. But if so, hard evidence is not easy to find from where
I sit at the Commission. That may be a matter of perspective from the
position the Commission itself occupies and the state of our information
on what is really happening in the field, and I will come back to that.

But in my view there are few instances apparent of settlement of or decision
in employment complaint cases under the DDA which have actually had broad
and significant impact in achieving the elimination of discrimination
(the major object of the DDA) rather than simply providing an individual
remedy (which while important does not appear among the objects of the
DDA in its own right).

This has not been because of a lack of complaints. From the outset employment
complaints have been and continue to be the largest proportion of DDA
complaints compared with other areas covered (albeit not with the same
predominance over other areas as employment complaints have under the
Sex Discrimination Act).

It
may, however, have had something to do with the effectiveness of selection
of cases to pursue by representatives and advocates, and the effectiveness
of strategic approaches by the Commission itself to date.

In
my view experience of employment complaints under the DDA to date has
involved

  • investment
    of a considerable proportion of the Commission's complaint handling
    resources (and those of State and Territory authorities)
  • correspondingly
    large use of time and effort (and in some cases money) by complainants,
    advocates or representatives, and employers
  • some
    clear instances of achievement of non-discriminatory practice, but generally
    on an individualised basis and very questionably to a level justifying
    the resource allocation involved
  • numerous
    complaints which could equally well have been dealt with under State
    or Territory discrimination laws (although I am well aware that in some
    situations the DDA remains the only available remedy due to defects
    in local laws, notably the failure of the South Australian legislation
    to apply to psychiatric disability)
  • the
    resources of the Commission and the parties being consumed in dealing
    with a substantial number of complaints regarding Commonwealth and other
    government bodies which were and are legislatively required to have
    their own EEO policies and procedures in place and which should have
    been capable of either avoiding the problem arising or at least resolving
    it internally
  • efforts
    to unscramble some badly scrambled working relationships after the event,
    when more availability and exchange of information up front might have
    avoided the problems arising.

Processing
complaints has also required the bulk of the time that I am able to dedicate
to disability rights matters alongside my responsibilities as Human Rights
Commissioner.

So
what do I propose should be done differently?

The
Human Rights and Equal Opportunity Commission Act requires that the Commission
perform its functions, including its functions under the DDA, "for
the maximum benefit of the people of Australia". Perhaps there is
nothing very startling about that. But I think this legislative requirement
does in fact give some strong directions which need more emphasis in our
work.

First,
if our work is to have the maximum benefit for the people of Australia,
we clearly should not be in the business of duplicating more or less equivalent
work of other organisations. In particular we should not duplicate the
work of organisations with closely equivalent roles such as the State
and Territory equal opportunity and anti discrimination bodies. Nor should
we duplicate the work of workers' compensation tribunals that have resources
far beyond those available to our Commission. On this principle we should
concentrate all our effort on types and areas of work that other bodies
either are not doing or cannot do.

There
is a temptation to add "or which we do significantly better",
but there are some obvious problems with that. Who is to judge? Inevitably
a federal body will always think it does some things better, while the
state and territory bodies will inevitably have a different view. Independent
evaluation by government, with funding for different functions accordingly,
perhaps has more objectivity, but does not seem at all consistent with
the independence which the Commission has always defended as the basis
for successful human rights work.

The
alternative is, accept duplication of functions and let consumers judge
which is better (after advising them of their alternatives). But I think
there are real problems in accepting that whatever choice of jurisdiction
is made by complainants or their advocates should dictate the Commission's
use of resources. Even if the individual complainant concerned believes
correctly that he or she is better off pursuing a matter under the DDA,
this says nothing on the issue of the effect of dealing with the matter
on the priorities for the Commission - for other employment complainants
who have no other remedy available, for other classes of complaint, and
for activities other than complaint handling.

It
does not seem to me to be consistent with the legislative direction to
perform our functions for maximum benefit, if we disclaim any right to
make strategic choices over the major part of our business and simply
take whatever complaints come through the door, more or less in the order
that they come and without any clear distinction in the level of resources
or type of activity applied to them.

I do
not accept that the legislation means that a complainant has a right,
in a strong sense, of choice of jurisdiction. The complainant makes the
choice but I then have a responsibility to decide whether to deal with
the complaint, on grounds including whether there is another more appropriate
remedy or whether the matter can be more conveniently dealt with by another
statutory authority.

So,
returning to the point of the Commission making a distinctive contribution
and not duplicating other work, I intend for the remainder of my term
as acting Commissioner to give increased attention to whether complaints
are most appropriately dealt with by our Commission where there is another
remedy available.

Apart
from avoiding duplication of effort, another basic strategic principle
for maximising effectiveness is to concentrate resources on reinforcing
success rather than in attempting to redeem failure.

I think
we are getting close to the point where we may need to apply that principle
to the effort to develop Disability Standards on employment.

Open
ended discrimination provisions such as those under the DDA and State/Territory
equivalents provide a high degree of flexibility in considering the individual
circumstances of cases. However they also carry a high degree of uncertainty
and lack of specification of rights and obligations.

In
response to this, the DDA provides for standards to be made, to make rights
and obligations under the DDA clearer and easier to understand, enforce
and comply with.

There
has now been over three years of effort dedicated to development of standards
on employment.

The
decision in 1995 to commence consideration of disability standards on
employment was a consensus decision of the National Committee on Discrimination
in Employment and Occupation. The National Committee included representatives
of the Commonwealth (Attorney-General's Department and the then Department
of Industrial Relations), State governments, employers (through the Australian
Chamber of Commerce and Industry and the Business Council of Australia),
the ACTU and a range of community representatives.

In
July 1995 a resource paper and summary discussion paper specifically on
possible Disability Standards on employment were issued by the DDA Disability
Standards Employment Sub-committee established by the National Committee.
The sub-committee has reflected the same tri-partite structure as its
parent body, comprising ACCI, the Council on Equal Opportunity in Employment,
the ACTU, disability community representatives, the Victorian Equal Opportunity
Commission, Commonwealth Attorney-General's Department, Department of
Employment, Education, Training and Youth Affairs and Department of Workplace
Relations and Small Business, and HREOC.

The
resource paper canvassed the desirability of Standards in this area and
discussed possible provisions of standards in some detail.

Although
submissions in response were relatively small in number (33) several of
these drew on broader input on behalf of a sector of interested parties
(for example the ACCI submission drew on some 423 responses to a survey
of its constituency).

Most
submissions in response to the papers issued by the sub-committee supported
preparation of draft Standards as the basis for further consideration
of whether Standards should be introduced in this area.

ACCI
expressed commitment to participation in consultative and consensus based
processes of consideration of Disability Standards in the employment area.
ACCI's submission indicated that its support for introduction of Standards
would be conditional on the nature and content of those Standards. Subject
to this, ACCI's submission made detailed suggestions in response to questions
raised by the resource paper, and identified safety and the relationship
of "inherent requirements" to job design and arrangement, multiskilling,
and production standards as two areas which could usefully be clarified
by Standards. ACCI considered that Standards if introduced should not
attempt to provide a detailed prescriptive code but rather should specify
factors or criteria to be considered in making decisions in relation to
compliance with the DDA.

The
Metal Trades Industry Association indicated that overall it was opposed
to introduction of Disability Standards and that, in the event that standards
were prepared, it would prefer a flexible rather than prescriptive approach.

The
ACTU submission indicated support in principle for development of Disability
Standards in this area. It expressed concern that Standards should not
be inappropriately prescriptive in areas where flexibility is required
and suggested that this concern could be dealt with by only making Standards
on issues where specification is possible and appropriate and leaving
issues where flexibility is required to guidance material.

The
disability community's National Coalition for the Development of DDA Standards,
while noting concerns from some sections of the disability community that
Standards would undermine existing rights, expressed broad support for
proceeding to draft Standards as the basis for further discussion and
consultation.

The
subcommittee decided on a consensus basis to prepare draft standards for
consultation. First draft standards were issued in August 1996 by the
Attorney-General's Department and the Commission on behalf of the sub-committee,
for a consultation period initially set at 3 months but extended to 6
months at the request of members of the sub-committee.

On
the choice between prescriptive and performance based standards, the notes
to the first draft standard stated:

    The
    Sub-Committee's view at present is that a non-prescriptive approach
    to draft Standards would be appropriate. Compared to more detailed,
    prescriptive Standards, such an approach appears better able to accommodate
    the diversity of employment circumstances and of disability and abilities.
    A non-prescriptive approach also appears better able to accommodate
    changes over time in work organisation and in needs and possibilities
    for reasonable adjustment, in a manner consistent with the objects and
    requirements of the DDA. Members of the Sub-Committee also consider
    that a non-prescriptive approach will be more consistent with the needs
    of productive and efficient operation of workplaces.

56
submissions were received in response to the first draft, in a number
of cases again representing input from a larger number of organisations
or individuals in a sector.

Industry
responses continued to note that endorsement of adoption of the result
of the process in regulatory form as standards would only be decided once
a final product for consideration was available. However, they were generally
supportive of continuing with the development process, while making further
drafting suggestions.

A number
of disability community responses expressed outright opposition to the
standards concept as undermining existing rights. The disability community's
National Coalition for the Development of DDA Standards, while continuing
to support standards in principle, expressed concern at many points that
the draft standards would undermine existing rights and obligations. In
HREOC's view these concerns were based in almost all cases on misunderstanding
of the draft and/or mistaken views of the effect of the DDA.

Second
draft standards, which adopted a revised plain English drafting approach
in an effort to remove room for misunderstanding and to achieve a greater
degree of "user friendliness," were issued in January 1998 with
comments requested by the end of March 1998. Submissions were in fact
received and accepted up to May 1998. They may be summarised as follows:

  • Disability
    community opinion was divided. Some submissions supported the general
    approach taken in the draft while seeking further revision and consultation.
    Many other submissions expressed continuing concern that standards would
    take away rights, and that non prescriptive standards would not be effective.
    These submissions generally called for adoption of guidelines by HREOC
    instead of Standards at this stage.
  • Most
    submissions received from government agencies expressed general support
    for proceeding with Standards along the lines of the draft.
  • Employer
    representatives (including ACCI and CEOE), while not expressing major
    concerns about the content of the draft, indicated a strong preference
    for guidelines rather than regulatory Standards.

In
my view all this experience and effort can be summarised this way. Extended
consultation processes to date regarding disability standards in this
area have failed to identify non-prescriptive approaches with any broad
support, and have confirmed the difficulty of identifying appropriate
prescriptive approaches across differing employment situations.

I do
not mean to write off the prospect of achieving standards completely.
I think there is a very important role for standards if they can be achieved,
particularly in making plainer the existence and meaning of the duty under
the DDA to make reasonable adjustment where required. I am continuing
to look for options for progress in this area, but there are limits to
how much frustration should be endured before deciding that enough effort
dedicated to one approach is enough.

As
I have already noted, the Commission has extensive guidance material available
on its internet site as "frequently asked questions" on employment.
This material occupies much the same intellectual territory as the type
of non-prescriptive standards being discussed - it does not give definite
solutions for particular situations but sets out principles to apply.
I am considering upgrading the description of this material to "guidelines"
or "advisory notes" to make its status clearer.

That
will be of little assistance to people with a disability or employers
who are looking for legal certainty rather than advice and opinion. Perhaps
the only way to provide legal certainty in this situation is for enterprises
or business associations to seek validation of acceptable approaches of
their own devising on specific issues through the exemption mechanism
under section 55 of the DDA.
.
This may be particularly applicable where employers already have EEO plans
and procedures - if they can demonstrate that these plans and procedures
produce real outcomes rather than being so much waste paper.

The
other approach I want to mention today is outside the normal expected
bureaucratic role of issuing the Commission's own opinions, whether in
advisory or regulatory form or by way of decisions on complaints. The
great limitation of standards or official advice in relation to employment
is the difficulty of dealing with the vast variety of disability issues
and employment issues that arise. Practical examples of where a problem
has been successfully dealt with in practice may be a much more important
part in achieving change to ensure equal opportunity for people with a
disability than official exhortation about how beneficial, and how compulsory,
change is.

One
of the great reported success stories of the United States experience
is the Job
Accommodation Network
,
which provides human advice and computer based resources to share experience
in making adjustments to achieve equal opportunity for people with a disability.
We do not have anything of that scale in Australia - a small number of
non-government resources struggle to meet requests for information and
many employers struggle to find any useful sources of advice or information
at all.

I intend
to discuss needs and possibilities in this area with an incoming federal
government, whatever its political persuasion. I will also be looking
at what can be done within the Commission's own existing resources, even
if only by way of providing links on our internet site to information
resources that people working in the area advise us of