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Opening the door to the employment of more people with disabilities

Disability Disability Rights

Opening the door to the employment
of more people with disabilities

Dr Sev Ozdowski OAM,
Acting Disability Discrimination Commissioner

ACROD Employment Forum 2003
31 July
Sydney Olympic Park

Sev Ozdowski

Introduction

Allow me to begin by acknowledging the traditional owners of the land
on which we meet, the Bidjigal clan of the Eora people. I also acknowledge
Bryan Woodford, ACROD President; Ken Baker, ACROD Chief Executive, my
fellow speakers and participants.

Most of the focus of this conference has been on practical issues for
managing disability employment organisations, engaged either in employing
people with people with disabilities or in supporting people with disabilities
in or into open employment.

I hope that my remarks also have some practical elements for you to consider.
But I want to pull back for a moment to look at the bigger picture.

Employment opportunity and national anti-discrimination
legislation

The purpose of the discussions at this conference and of your own activities
is of course to provide improved employment opportunities for people with
disabilities.

The Disability Discrimination Act was also initially conceived as part
of a strategy to improve employment opportunities for people with disabilities
(and incidentally to benefit the federal budget by reducing rates of dependence
on the social security system).

The first proposal for federal legislation on disability discrimination
was in fact put forward only as employment discrimination legislation.

National legislation on disability discrimination in employment was one
of the major recommendations of the Labour and Disability Workforce Consultancy
report, also known as the "Ronalds Report", among a number of
other reports leading to the legislation.

I think it is important to remember that protection against discrimination
in employment was not seen only as an end in itself. It was put forward
as part of a package to achieve greater participation and opportunity
for people with disabilities and to ensure that Australian society benefited
from people with disabilities being better able to contribute their skills
and abilities to their full potential.

Of course, the legislation did not end up only addressing employment issues.

HREOC, together with ACROD as the peak disability service organization
and also with disability representative organizations, emphasized that
even to be effective in relation to employment the legislation would have
to address related areas such as education, access to buildings and information,
and access to transport.

The legislation which was actually passed covered quite a wide range
of areas of life, although it may be that this coverage should be expanded
further.

Achievements in ten years of the DDA

This year for the tenth anniversary of the DDA I launched a publication
discussing some of the achievements in using the legislation in the last
ten years.

That publication, "Don't judge what I can do by what you think I
can't', notes substantial progress in access to public transport and buildings.
It points to significant gains in some areas of access to communication
and information, and some progress towards equal opportunity and inclusion
in education.

Limited progress on employment

What we have not seen, though, is much evidence of progress towards equal
opportunity in employment.

One of the problems in this area is that detailed statistical measures
are hard to come by. But it seems clear enough that rates of unemployment
and underemployment among people with disabilities remain much higher
than for people without a disability, and average income levels for people
with disabilities remain substantially lower.

One figure we do have from the Australian Bureau of Statistics is that
while 80 percent of the general population are participating in the workforce,
only 53 percent of people with a disability do.

Another indication is given by figures suggesting that representation
of people with disabilities among Commonewalth Governemnt employees has
actually fallen significantly during the life of the DDA, from 5.7% in
1993 to 3.6% in 2002.

I do not want to dismiss achievements that have been made by particular
individuals or enterprises. But at the overall level for Australian society
it is hard to see evidence that we have moved closer to people with disabilities
being able to enjoy equally the economic and social benefits that come
from equality of opportunity and participation in employment, or our society
gaining the benefits of having all its members able to contribute their
productive and creative abilities to their maximum potential.

Strategies for improving outcomes

I am not here to offer a definitive view of what should be done about
this.

My main purpose is actually to call on you to contribute your own experience
and expertise to broader debate on how to open the door to equal employment
opportunity for people with disabilities, not only in the specific context
of disability employment services but throughout the Australian economy.

If I or the Human Rights and Equal Opportunity Commission had the complete
strategy for achieving equal employment opportunity, we would have announced
it already during the more than ten years that we have been working to
promote and achieve the objects of the Disability Discrimination Act.

In the long term we should see some benefits for employment participation
from the gains we are making in access to public transport and access
to buildings, as people with physical disabilities in particular become
more able to get to work without experiencing extra expense and delays
in waiting for transport, and more able to get into workplaces as access
becomes a matter of routine rather than of potentially expensive alterations.

Technology also offers prospects for assisting participation and productivity
by people with disabilities. In particular technology is opening up ways
for people with physical or sensory disabilities to have more effective
access to information and more effective choices in methods of using workplace
equipment.

Increasing moves towards more inclusive education systems may also see
improvements both in people with disabilities being able to acquire skills
and training on a more equal basis, and in community attitudes recognizing
that people with disabilities are inherently part of our society and do
have skills and abilities to contribute.

Limitations and barriers

But none of these developments offer guaranteed and comprehensive solutions
even in the long term.

More accessible transport and buildings offer benefits mainly to people
with physical disabilities, to a lesser extent people with sensory disabilities,
and very little to people with intellectual or psychiatric disabilities.

Technological development similarly seems to have offered possibilities
so far mainly for people with sensory or physical disabilities rather
than across the full range of disability.

People with psychiatric disabilities for example may require flexibility
in working arrangements and greater awareness and understanding from employers
and co-workers rather than gaining much from new technologies.

While new technologies can provide new means for people to work and participate,
they often also create new barriers.

Too often we see technologies introduced without provision for access
and use by people with disabilities, with the result that people with
disabilities are continually one step behind and that disability issues
have to be dealt with as matters for expensive or inconvenient modifications
to equipment or working arrangements instead of being simply incorporated
from the start.

As well as issues of physical and sensory access, issues of useability
of technology for people with intellectual or learning disabilities very
seldom receive the attention they need.

In short, important barriers remain and the DDA alone cannot always deliver
the requried change.

Costs of participation and adjustments

The issue of expense of course remains a very real one particularly as
it impacts on smaller employers and on people with disabilities and their
families when they need to meet the costs of equipment themselves.

In my own policy team two members who are blind use Braille computer
equipment which effectively makes their disability a non-issue in the
way we work. That equipment still costs thousands of dollars more than
a standard computer. That is something we can readily accommodate given
the resources of a government department and the specialized and high
level skills of the people involved, but for a less well resourced employer
or for other employees equipment costs of this sort could present a significant
barrier.

I welcome the emphasis that ACROD and disability representative organizations
have given in discussions of welfare reform to the point that many people
with disabilities face significant additional costs in participating in
employment. This suggests that cutting benefits to give people incentives
to work is not a workable approach, instead of ensuring that people have
the resources to obtain equipment and services they need to realize their
potential and contribute economically and socially.

We have also seen statements recently from education providers that resource
issues are limiting the effectiveness of moves towards inclusive education,
which will affect prospects for equal opportunity in employment in future.

I am thinking both of comments from State education ministers that they
require more resources in the context of the Commonwealth's decision to
go ahead with disability standards on education under the Disability Discrimination
Act, and comments from non-government education providers in submissions
to the current Productivity Commission inquiry on the DDA.

My view of the draft disability standards for education is that they
do not impose a higher level of obligations than already exist under the
DDA and equivalent State and Territory anti-discrimination laws. So the
issue is not that more resources are needed before education standards
can be introduced but that more resources may well be required from governments
to ensure compliance with the legislation that is already in place and
to ensure effective opportunities in education in practice.

Productivity Commission inquiry

I want to spend some time now talking about the Productivity Commission
inquiry that I have just mentioned.

In February this year the Government announced an inquiry by the Productivity
Commission into the Disability Discrimination Act. The inquiry is required
to report by April 2004. The inquiry is to examine the social impacts
of the legislation on people with disabilities and on the community as
a whole. It will consider how far the objectives of the legislation -
including eliminating discrimination on the grounds of disability - are
being achieved. It will also examine the legislation's economic impacts
and whether amendments to the legislation are warranted.

Some people in the disability community have understandably been apprehensive
about the possible implications of such an inquiry in case it became an
excuse for attacking equal opportunity and access as all too expensive
and for rolling back legal protection against discrimination.

However, I and my colleagues welcomed this as a valuable opportunity
to assess the effectiveness of the legislation and to examine further
possibilities for achieving the objects of the DDA. Potentially that could
include some examination of the economics of allowing the abilities of
people with disabilities to be wasted through failure to support adjustments
in work and other social systems.

I think the conduct of the inquiry so far has been encouraging.

The Productivity Commission has released a major issues paper and is
holding hearings around Australia.

The inquiry has received over 200 submissions so far. That has included
an initial submission from HREOC with a follow up submission commenting
on issues raised by other organisations and individuals to follow very
shortly. ACROD's national office has also made a brief submission. I would
encourage ACROD member organisations to consider getting more involved
in this inquiry and debates which may come out of it on barriers to opportunity
in employment and means of achieving effective opportunity.

I say that particularly because so far there have not been many submissions
from an employer or industry or service provider perspective. ACROD and
its members are of course very well situated in this respect being able
to provide industry perspectives but also from a point of view of great
experience and commitment on disability issues.

I want to spend a few minutes highlighting issues in the employment
area raised in this inquiry by HREOC as well as by other submissions and
encourage you to respond to these issues - particularly if you disagree
or think a different emphasis should be added.

HREOC's own submission admits in relation to employment issues that we
have much less detailed information or solutions to provide than we would
like.

We do not think that discrimination law alone will be effective in achieving
equitable employment outcomes for people with disabilities but we do make
some suggestions for improvements to the law.

Disability standards on employment not the best mechanism

We have committed considerable time towards having discrimination law
perform its part, including by pursuing development of disability standards.

Unlike the progress we have seen on standards on transport, buildings
and now on education, work over a number of years towards disability standards
on employment failed to produce a consensus to move forward to adopt standards.
One issue was that, while most participants in the process agreed that
prescriptive standards were not appropriate, the principle based draft
standards which were produced instead were not seen by all parties as
delivering sufficient outcomes. Employer representatives also expressed
a preference for voluntary standards rather than a further level of regulation.

There may be a role for standards in addressing some specific issues
including perhaps about the relationship between occupational health and
safety laws and discrimination laws but it is hard to see disability standards
on employment as a major part of the solution to employment equity issues
at this point.

Reasonable adjustment

More worthwhile results may be gained by taking up the suggestion in
a number of submissions to amend the DDA to confirm and clarify the principle
of reasonable adjustment as part of the requirements of the DDA rather
than through development of standards.

Exemptions

In the absence of standards, HREOC has indicated a view that the exemption
mechanism under section 55 of the DDA, in conjunction with appropriate
EEO, workplace diversity or other relevant policies and procedures and/or
industry codes, appears to offer significant potential for promoting the
objects of the DDA and increasing certainty for employers and other relevant
parties.

Use of this mechanism depends on applications by or on behalf of employers
rather than being something which HREOC is able to initiate itself but
we do encourage industry bodies and employers to consider further use
of this mechanism in support of positive policies and procedures.

Other employment related provisions

We also supported review of a number of other provisions in the DDA related
to employment including

  • a need for more definition on what constitutes harassment and on an
    employer's duties in preventing harassment.
  • a need for redrafting of the provision dealing with requests for information
    to ensure that disability related questions are permitted if and only
    if they are for legitimate purposes
  • possible need for clarification of the application of the DDA to training
    and apprenticeships
  • possible expansion of the Act to cover voluntary work and other occupational
    relationships alongside employment..

Modified wage exception

We note in our submission that the modified wage exception in the DDA
accepts that some people will have lower productivity because of their
disability, and that to promote their having employment it is preferable
to permit payment on a wage scale modified to reflect lower productive
capacity.

However, complaint experience has indicated instances of people being
paid reduced wages without any award or agreement providing for this being
in place.

Complaints to HREOC and industrial proceedings have also raised issues
of the level of support and explanation needed to ensure that some workers
with disabilities can participate effectively in agreement making processes.

We welcome the decision by the Australian Industrial Relations Commission
to convene a forum in this area.

Additional measures

In common with a number of other submissions we note that many of the
issues in this area may be more systemic rather than mainly being about
discrimination directly by employers and that additional measures besides
provision for discrimination complaints need to be considered

Meeting costs of adjustments and participation

Submissions from an employer/recruitment perspective as well as from
the disability community have emphasised the importance of assistance
in meeting costs of workplace modifications to provide more effective
employment opportunity - including issues such as provision of support
workers where required as well as physical modifications to premises or
equipment.

We agree with points made in submissions that costs of disability in
Australian society are present already rather than being generated by
the DDA (other than the specific and limited costs of dealing with complaints),
and that the major issue is how to distribute these costs appropriately
and reduce their impact as far as possible both on individuals and businesses.

To set against costs, our submission noted that economic benefits which
need to be considered may include:

  • Reduced costs of separate or parallel service provision as mainstream
    services and facilities become more accessible and inclusive
  • Increased labour market participation, leading to reduced welfare
    dependence and increased competition in the labour market
  • Improved skills formation and use
  • Potential improvements in productivity, through requirements for inclusion
    and accessibility providing incentives for innovation in methods of
    work and service delivery
  • Improved useability of services and facilities for all members of
    the community through increased adoption of universal design approaches

Our submission supported consideration of further incentives for increased
accessibility and inclusion, whether at federal level or at state or local
level.

Outside of the limited areas where support is currently provided for
access and inclusion, the costs of adjustments to accommodate disability
requirements appear to fall either on particular employers, service providers
and others with responsibilities under the DDA and equivalent legislation,
or on people with disabilities and their families. To the extent possible
in this inquiry we would support examination of means of addressing these
impacts beyond the legal rules of the DDA itself.

We argued in evidence to the inquiry that there may be a case for increased
incentives for actions to increase accessibility and inclusion on competition
policy grounds of expanding access in consumer and labour markets as well
as on other social policy grounds.

Affirmative action

Our initial submission to the Productivity Commission refers to a lack
of employment equity reporting or other affirmative action provisions
in the DDA.

A number of submissions support consideration of quotas for employment
of people with disabilities as implemented in some overseas nations. Although
I agree with the need to consider further measures to address the disadvantaged
employment status of people with disabilities I am not aware of evidence
of quota systems working effectively.

Other submissions refer to other forms of affirmative action measures
provided for in employment equity legislation overseas, including requirements
for reporting and development of plans and policies, which we would see
as more promising.

The Labour and Disability Workforce Consultancy Report commissioned by
the then Commonwealth Government, which preceded the development of the
DDA, recommended in 1991 that national employment discrimination legislation
be accompanied by reporting requirements comparable to those provided
for under the Affirmative Action (Equal Opportunity for Women) Act 1986

Consultation prior to the introduction of the DDA indicated strong employer
concerns regarding the burden of any reporting requirement, even if limited
to employers having 100 or more staff as with the AAA. It appears appropriate
however to at least re-examine the issue of reporting mechanisms for government
and possibly for larger businesses.

Information on practical solutions

A critical gap in the machinery for achieving the objects of the legislation
appears to be the lack of any coordinated or large scale mechanism for
ensuring that employers, service providers and others with responsibilities
under the legislation have ready access to information on practical solutions
to access and inclusion issues.

There is still no equivalent in Australia for example to the U.S. Job
Accommodation Network advisory service, which provides practical information
and advice to employers on equipment or other modifications necessary
to accommodate a person's disability in the workplace.

I do not believe that such a service would require very large resources,
since it is mainly a matter of providing easier access to information
and expertise that is already out there.

Research base for standards

Another issue pointed to by a number of submissions in the Productivity
Commission inquiry where I expect ACROD may be interested is a lack of
systematic government support for research into access and inclusion issues
where clear solutions are yet to be identified, in particular as a basis
for standards development.

Accessibility rules for government procurement

A number of submissions in the productivity commission inquiry also note
the accessibility rules for equipment procured by government which exist
in the USA under the Rehabilitation Act.

These rules provide a powerful incentive for companies to address access
issues in their mainstream products instead of the only equipment accessible
and useable by people with disabilities being specialised equipment which
is by more expensive and which may be hard to find information on for
some employers and people with disabilities.

In particular these rules seem to have had a major impact on computer
software makers building access features into their products.

There appears to be a strong case for considering similar rules in Australia.
Rules of this kind could assist in ensuring that workplace facilities
become accessible and useable by a wider range of people with disabilities
more as a matter of routine, rather than issues of reasonable adjustment
needing to be confronted on an individual basis every time. I think input
from ACROD and its members on this issue would be particularly important.

Disability and technology

I mentioned earlier the tendency for disability access issues to be left
one step behind in development and introduction of new technologies.

Earlier this month I released a discussion paper on telecommunications
accessibility issues. I commissioned this paper to promote discussion
of ways to ensure that people with disabilities do not miss out on new
developments in telecommunications technology and services. I hope to
convene a high level forum on these issues later this year.

Just last week I became aware that ACROD is planning a forum on technology
issues more generally in October. I support the need for such a forum
and hope that the Commission may be able to contribute to it, while recognising
that not every disability access and equity issue has a technology based
solution.

Conclusion

In conclusion I would say again that the DDA cannot provide the whole
of a strategy for achieving equal employment opportunity, although I am
committed to ensuring that the law contributes all that it can to this
objective.

I would welcome your co-operation and engagement in seeking to ensure
that the DDA does make a positive contribution including through taking
up the opportunities presented by the productivity commission inquiry.

This inquiry also presents opportunities to pursue agendas beyond review
of the law. I have mentioned some possibilities including improving availability
of information on removing barriers to participation in employment by
people with disabilities, and additional incentives and support to address
costs of participation and workplace adjustments.

I am sure there are other issues waiting to be raised as well as new
perspectives on the issues that have been raised so far.

The reason that I am giving so much emphasis to this productivity commission
inquiry is not just because it is about the legislation which my own agency
has the lead role in administering or because we are putting considerable
effort into responding to this inquiry.

The reason is that I think we need to look at fresh approaches to achieving
something nearer to equal opportunity for people with disabilities in
employment. And, as important as the current processes are in our respective
worlds of reforming business services and applying the Disability Discrimination
Act, I do not see in either of those areas anything that we are doing
now that is really opening the doors for people with disabilities on a
large enough scale.

But between us I think we can come up with the right doors to try.

Thank you.