Working while disabled

Economic marginalisation series post 2

One of the main reasons for our economic marginalisation is that we are shut out of employment. No genuine action over decades has produce even the slightest shift in this gap because they aren’t addressing the real barriers to work.

The Australian Human Rights Commission lists nine barriers to getting a job, starting with discrimination and including refusing adjustments and accommodations by employers.

I’ll add to that pile the very real barriers that exist in the very systems that are meant to support us. Income support, disability employment services, and now the NDIS all act as barriers to equal employment, as well as the broken disability discrimination system.

Barriers exist also for particular disabled people, including intersections of racism and ableism. There are also specific barriers for people with an intellectual disability that lead to so many folks earning subminimum wages, or not in work at all.

Both the Disability Royal Commission (DRC) and the NDIS Review acknowledge this employment gap, but neither address sufficiently the barriers so many of us face.

[When it comes to employment, not all disabled and sick folks can or want to work, and that is fine. They also must have a dignified amount of income to live on, and the support and services they need.]

Open employment

The DRC looks at employment in two sections of Volume 7 - one on open or mainstream employment and one on so-called supported employment, where disabled people are paid as little as $2.90 per hour for their labour.

In mainstream employment, the stats haven’t changed in three decades and after a myriad of inquiries. Only 53% of working age disabled people are in employment compared to 82% of non-disabled people. 

The DRC report lays out the barriers to work that so many of us experience - attitudes, organisational, environmental and structural. None of this information is new or secret, with the DRC pulling together evidence given in the four public hearings held on employment and other reports. There are again, as in other volumes, no use of the Royal Commission powers to find out why these barriers exist, or what governments and others have done behind closed doors.

Instead, in one astonishing section, the report says that they couldn’t ‘cost a proposal to increase the funding for interpreting’ through the Employment Assistance Fund in response to real issues raised by the Deaf community. Come on, costings like this are no more difficult than finding out how much an average Deaf person might need an interpreter for at work, and multiplying by the cost and the number of Deaf folks in work. This is not rocket science and it is something that policy people do in an afternoon, so it is surprising, to say the least, that this wasn’t done in four and a half years.

In the structural barriers section, there is a long discussion of the Disability Employment Services system, with some engagement with the huge deficiencies in that system raised by disabled people and in the Commission public hearing. But again, nothing that isn’t already in the public sphere.

The data is clear that most disability employment services don’t work and don’t deliver, and in the previous round of reform in 2018, disability organisations actively campaigned against what was proposed.

The previous government, after a leak of a report showing the failure of the last round of reform, did 18 months of work with disabled people, providers and organisations, ending just before the 2022 Federal Election with a rare consensus blueprint for change.

Instead of continuing that work, the new government extended nearly all the DES contracts by another two years, pushing the urgent need for reform down the road, and shelving all the consultation work from disabled people and organisations. Eight organisations were stripped of their funding for underperformance.

Since then, a draft Quality Framework for DES has been developed, and consultation is underway about how to design the measurements for that quality.

The DRC makes some useful small recommendations on DES (7.16 and 7.17), but I worry whether they are too late in this round of reform to have a meaningful impact on what is happening. Recommendation 7.16 talks about using inclusive design principles and co-design with disabled people, as well as using customised employment models, which is a strongly evidence-based employment structure particularly for people with an intellectual disability.

They also ask for full flexibility of supports and to consider removing the terrible eight-hour rule that funnels people with an intellectual disability into sheltered workshops. Some of these recommendations echo the big submission from Inclusion Australia about a blueprint for change that I worked on last year. [More on this in the piece on supported employment, coming soon.]

The other recommendation is for co-designed education and training for DES staff. And that’s it. 

There’s no engagement with DES enforcing punitive welfare policies, or cutting off income support. There’s nothing about  DES referring people to their own organisations' training programs, as heard in the DRC public hearing, and to low value training. And while the discussion acknowledges the problems with the DES funding model, there are no specific recommendations about changing the structure or incentives in that, let alone whether the market can ever deliver this kind of service.

The other key open employment recommendations again pick up some of what we asked for in Inclusion Australia’s submission - that all levels of the public service do some more serious engagement about hiring disabled people at all levels. They recommend (7.18) specific targets for different levels of work (entry, graduate and executive) as well as for people with an intellectual disability.

Every Commissioner except the Chair also recommends that targets are set at an agency and department level of 7%, increasing to 9% by 2030. We are 17% of the population, but it’s a start. Four Commissioners say that affirmative action should be used if these targets don’t work, and that the main public service tool for employing disabled people hasn’t had much impact.

In recommendation 7.21, they recommend that the public service has some clear and common principles around the adjustments that disabled people need at work and in 7.22 that they report on how they are going with meeting their targets.

Procurement gets a mention, but with a disappointing note about Victoria’s policies which support subminimum wages. Commissioners recommend these policies are adopted nationwide, but don’t acknowledge that ‘award based pay rates’ in this case, actually mean the Supported Wage System. **sigh** It is legal, and is award, to pay disabled people subminimum wages.

There are a couple more recommendations about changes to the Fair Work Act and the Disability Discrimination Act, but tinkering and edges come to mind. 

The DRC does recommend the creation of a Disability Employment Rights Council to ‘to improve coordination, consistency and clarity across regulatory bodies and frameworks to improve outcomes for people with disability in employment’. God, such tiny goals.

Now on to the NDIS Review. They made very similar findings to the DRC about the employment gap for us, noting that:

‘Current approaches to disability employment are not working. Over half (53 per cent) of people with disability aged 15 to 64 are in the workforce, compared with 84 per cent of people without disability.41 This gap of over 30 per cent remains largely unchanged since 200342. The combination of discrimination, low expectations, poorer school outcomes and less higher education results in limited opportunities for paid employment, lower incomes and reliance on government payments. A lack of affordable supports outside the NDIS also presents significant challenges to people with disability accessing the support they need to enter the workforce.’ [p58]

But again, like the DRC, there isn’t the urgency or breadth of recommendations that could address any of these barriers to employment.

The NDIS Review, under their recommendation about foundational supports, says in Action 1.7 that:

The Department of Social Services and the National Disability Insurance Agency should improve linkages between the NDIS, Disability Employment Services and related initiatives targeting improved employment outcomes for all people with disability, including NDIS participants.

Yep.

The other key piece of public policy around employment is the Targeted Action Plan under Australia’s Disability Strategy (ADS). All the actions in there finish in 2024, and it’s not clear what kind of impact any of them have had.

The key measure of employment is from the Australian Bureau of Statistics Disability Ageing and Carers snapshot, last measured in 2018. The next is from 2022 and is due out in June 2024. This dataset is really important, as much of the outcomes measurements from the ADS rely on it.

My analysis of income support data from last year showed an increase in the numbers of folks getting these payments, at a time of significantly lower unemployment more generally, meaning I’m not hopeful of much change in employment from these new figures.

I hear from too many disabled friends and colleagues of continued discrimination, refusal of adjustments and accommodations, of bullying and harassment.

Fixing discrimination

Volume 4 of the DRC Final Report tackles the very broken Disability Discrimination Act (DDA), concluding that it ‘has not achieved its objectives.’ [p279] You don’t say.

In 2021-22, complaints about disability discrimination were over half of the total complaints to the Australian Human Rights Commission, yet another increase on the year before, continuing the trend.

This section outlines both the history of the DDA, and recent case law that has made enforcing the DDA almost impossible. The DRC proposes a number of detailed and specific amendments to the DDA that would both fix the existing problems, and add some positive new elements to the Act, such as a positive duty not to discriminate, and the capacity to act on harassment.

The flaw of course in the DDA and other rights acts is that they operate on an individual level, and rely on reactive responses to discrimination after it occurs, driven by complaints from the very people hurt by that discrimination. There aren’t recommendations specifically to address this because the DRC sees the Disability Rights Act, another of their recommendations, as the right avenue for that kind of proactive systemic work.

Impact of recommendations

While the DRC and NDIS Review recommendations are ok, they aren’t earth shattering. I’ve called the DRC recommendations a floor, rather than a ceiling, and that’s certainly the case here.

There aren’t any recommendations about changes to income support so more people can try employment and build their confidence, and manage the known discrimination of employers.

There aren’t any about NDIS or DES providers having a minimum number of disabled people working there in order to get public funds. 

Again, there aren't any about dumping mutual obligations, work for the dole and other charades from DES providers either.

There aren’t any about penalities for not hiring disabled people, just more of what has been recommended over and over.

And there’s nothing much about any accountability mechanisms to collect data more often than the four yearly Australian Bureau of Statistics snapshot, so we can evaluate any of the programs that say they are about disabled people getting work.

Next in this series I'll look specifically at the recommendations about employment for people with an intellectual disability, ADEs and subminimum wages in more depth.