The DDA and employment of people with a disability
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Chris
Sidoti South
Australian Employment Placement Association breakfast meeting |
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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