Inclusive Employment - Volume 7 (Part B)

The DRC recommendation

The Australian Government Department of Social Services should ensure that the design of the new Disability Employment Services model: 

• is developed using inclusive design principles, and co-designed by people with disability who are employed as paid members of the design team 
• adopts customised employment models as a core component of service provision 
• ensures funding arrangements facilitate flexible employment supports, such as customised employment, and support the progress of Disability Employment Services participants in achieving employment goals and long-term employment outcomes 
• considers options to remove the requirement for a person to have a minimum future work capacity of eight hours a week in order to access the Disability Employment Services program, to facilitate access for all people with disability to the new model. 

Why we want this recommendation to go further

Reform of the Disability Employment Services (DES) approach should occur as a high priority and be focused on strengths and skills through tailored individual plans that achieve sustainable mainstream Award waged employment outcomes. DES providers should be precluded from placing people with disability in segregated or exploitative employment under the Supported Wage System. There should also be a focus on ensuring all employers are enabled and supported to build their capacity to employ people with disability and to do so on a population proportionate basis. 

The DRC recommendation

The Australian Government Department of Social Services should develop a suite of accessible education and training resources for providers of Disability Employment Services to upskill their staff. 

Resources should be co-designed by people with disability and involve consultation with advocates, employers and Disability Employment Services providers. 

Resources should address the gaps we have identified, including in: 

• disability awareness 
• cultural competence 
• human rights 
• customised employment 
• employer engagement 
• Disability Employment Services guidelines and procedures.

The DRC recommendation

The Australian Government and state and territory governments should adopt specific and disaggregated targets to increase the proportion in the public sector of: 

• employees with disability at entry and graduate levels 
• employees with disability at executive levels 
• employees with cognitive disability. 

Public sector targets should be supported by: 

• clear employment pathways into the relevant public services for each target cohort 
• measures and programs to support the recruitment and progression of each target cohort 
• provision of appropriate supports. 

The Australian Public Service Commission and state and territory public service commissions should ensure these targets contribute to their existing overall employment targets for people with disability.

Why we want this recommendation to go further

Progressive targets should be set at intervals so that population parity is achieved within the term of Australia’s Disability Strategy 2021-2031.

The DRC recommendation

The Australian Government and state and territory government departments and agencies should be required to set a target to ensure that a proportion of new public service hires to their respective workforce are people with disability. 

The target should be at least 7 per cent by 2025. 

The target should increase to at least 9 per cent by 2030.

Why we want this recommendation to go further

Higher progressive targets should be set at intervals so that population parity is achieved within the term of Australia’s Disability Strategy 2021-2031. 

The DRC recommendation

The Australian Public Service Commission should incorporate clearer directions in Australian Public Service training and support on applying the merit principle in recruitment. Training and support materials should: 

• specifically address the importance of having a diverse public sector workforce that reflects the community it serves
• provide guidance in considering the need for diversity in the application of the merit principle in recruitment.

The DRC recommendation

The Australian Public Service Commission should: 

a) lead the development of common principles to underpin adjustment policies for providing and managing adjustments in the public sector. This should occur in partnership with state and territory public service commissions. The principles should be used to inform Australian Government and state and territory government department policies and procedures on adjustments. The principles should include: 

• clear and accessible processes for staff to request adjustments 
• timeframes for implementing adjustments and a process for review and seeking feedback on adjustments 
• clear and accessible processes for making and responding to complaints relating to adjustments (including complaints about refusal to provide an adjustment) 
• clear policies on handling and sharing information about a person’s disability or adjustments 
• referrals to internal and external supports in relation to requesting and managing adjustments 
• requirements to collect data on applications for, and the implementation of, adjustments. 

b) develop an Australian Public Service-wide adjustment passport to improve the ease with which people with disability can maintain and transfer their adjustments when moving within the Australian Public Service. 

The DRC recommendation

The Australian Public Service Commission and state and territory public service commissions should report annually on the progress of their public sector disability employment strategies, including progress against overall and disaggregated targets for increasing the percentage of employees with disability. These reports should be published and made available in accessible formats.

The DRC recommendation

The Australian Government and state and territory governments should adopt procurement policies that: 

a) favour businesses and entities able to demonstrate, in accordance with published criteria, they are providing employment opportunities for people with disability in open, inclusive and accessible settings, including people with intellectual disability or cognitive impairments. 

b) require all information and communication technology purchases to comply with the current Australian information and communication technology (ICT) accessibility standard (AS EN 301 549:2020 – Accessibility requirements for ICT products and services).

Why we think this recommendation should go further

Procurement policies should include deadlines of no longer than five years to cease procurement from businesses and entities that pay any of their staff subminimum wages or segregate people with disability. In the interim, preference should be given to those demonstrating genuine inclusive employment practices including standard mainstream Award wages and conditions. 

The DRC recommendation

The Australian Government should convene a Disability Employment Rights Council to improve coordination, consistency and clarity across regulatory bodies and frameworks to improve outcomes for people with disability in employment.

The DRC recommendation

The Fair Work Act 2009 (Cth) should be amended to: 

a) ensure the definition of ‘disability’ is consistent with the Disability Discrimination Act 1992 (Cth) 

b) remove the words ‘physical and mental’ preceding ‘disability’ in sections 351 and 772.

Why we think this recommendation should go further

The Fair Work Act 2009 should be further amended to specifically abolish the Supported Employment Services Award and the payment of subminimum wages to any worker within no more than five years. This should be one step in a comprehensive funded plan to end segregated and exploitative employment within the term of Australia’s Disability Strategy 2021-2031.

The DRC recommendation

Section 21A of the Disability Discrimination Act 1992 (Cth) should be amended to expand the factors to be considered in determining whether a prospective or existing employee would be able to carry out the inherent requirements of a particular role. 

These factors include the: 

• nature and extent of any adjustments made 
• extent of consultation with any person with disability concerned. 

The DRC recommendation

The Australian Government should expand the functions of the Fair Work Ombudsman to allow a matter involving an employee with disability to be referred back to the Fair Work Ombudsman by relevant authorities if they: 

• consider a complaint may be best addressed by the Fair Work Ombudsman 
• have the complainant’s consent to do so. 

The referral mechanism should be available in instances where a matter was initially referred by the Fair Work Ombudsman to a relevant authority. 

The DRC recommendation

The Australian Government should fund Disability Representative Organisations to deliver an information campaign for employees with disability in Australian Disability Enterprises. This campaign should provide information about: 

• open employment, including wage conditions 
• how receipt of the Disability Support Pension (DSP) interacts with a person’s wages, including – 
  • assistance with financial literacy materials 
  • supports for individuals to calculate how changes to their DSP or wages impact their overall income and financial situation 
• options for a person to suspend their DSP if they are earning above the threshold 
• who to contact to ask questions or obtain further information. 

This information should be available in a range of accessible formats.

Why we think this recommendation should go further

We believe an information campaign is required to address confusion and fear about working for all people receiving the Disability Support Pension (DSP).  

Additionally, there should be reform of the rules about working, including the income thresholds and the length of the period a person can pause their DSP payments in order to remove the disincentives to work.

The DRC recommendation

Following the conclusion of the NDIS Participant Employment Strategy in 2023, the National Disability Insurance Scheme (NDIS) should adopt an ‘open employment first’ approach in the next iteration of the strategy. The strategy should: 

• ensure the development of employment goals in participants’ NDIS plans considers employment in open and integrated employment settings as a first option 
• provide training for Local Area Coordinators, National Disability Insurance Agency planners and support coordinators to build knowledge, resources and capacity to encourage participants to – 
  • develop employment goals in open and integrated employment settings as a first option 
  • identify appropriate supports available to achieve open employment goals 
• establish a target to increase the proportion of participants in open and integrated employment settings 
• build the knowledge and capacity of NDIS employment support providers to assist participants to – 
  • transition from Australian Disability Enterprises to open and integrated employment settings 
  • provide ongoing support in open and integrated employment settings.

Why we think this recommendation needs revision

We strongly believe the NDIS should adopt a mainstream employment only approach in line with a staged transition to end segregated and exploitative employment within the term of Australia’s Disability Strategy 2021-2031.  

The DRC recommendation

The Australian Government Department of Social Services should develop a plan to support people with disability working in Australian Disability Enterprises (ADEs) to move to inclusive, open employment options in a range of settings. 

The plan should incorporate: 

• the option for people with disability to continue working in ADEs, with strong and appropriate safeguards, if that is their free and informed choice. Commissioners Bennett, Galbally, Mason and McEwin provide a recommendation to phase out ADEs by 2034 (Recommendation 7.32). They support this element of Recommendation 7.30 until ADEs are phased out
• action to increase employment opportunities in open and inclusive settings for people with disability (linking with Recommendation 7.29)
• improved information for people with disability about employment supports, opportunities in other settings, wages and the Disability Support Pension (linking with Recommendation 7.28)
• active consultation with people with disability, Disability Representative Organisations and Disabled People’s Organisations Australia, and the adoption of inclusive design principles in developing and implementing the plan
• the Australian Government working with industry to support people with disability to access more inclusive, open employment options and to transform their segregated employment services to a more comprehensive service offering
• improved collaboration between the National Disability Insurance Scheme and Disability Employment Services to ensure different employment services work cohesively to deliver supports for people with intellectual disability and others.

Why we believe this recommendation required revision

We strongly believe there should be a staged transition to end segregated and exploitative employment with a clear final deadline within the term of Australia’s Disability Strategy 2021-2031 to ensure the transition stays on track. Therefore, transition support should reflect the steps needed to deliver this change, not to prolong outdated approaches.  

The DRC recommendation

a) The Australian Government should introduce a scheme to ensure that employees with disability are paid at least half the minimum wage. The scheme should include: 

• revision of the productivity-based wages calculation to accommodate the move to a new minimum amount of 50 per cent of the current minimum wage 
• a provision for the Australian Government to subsidise employers for the difference between the wages payable under the relevant award or enterprise agreement and the new minimum wage until 2034. 

b) A review of the scheme should be undertaken by the Disability Reform Ministerial Council after five years of operation. 

c) The Australian Government should use the results of the review to develop a model and pathway to lift minimum wages payable to employees with disability to 100 per cent of the minimum wage by 2034.

Why we believe this recommendation requires revision

We support a staged transition that ends segregated and exploitative employment within the term of Australia’s Disability Strategy 2021-2031. One stage within this transition should be the cancellation of the Supported Employment Services Award and ending the payment of subminimal wages within no more than five years. This transition should be supported by a staged increase in wages. However, to ensure a sustainable model is achieved over the medium- and long terms, government subsidies should not be paid for the purpose of meeting wage obligations. Instead, employers should be supported to develop new business models that will ensure longevity with products or services priced so they reflect the full cost of inputs including labour, as occurs across the broader economy. The provision of government subsidies for ordinary operational costs is the antithesis of inclusion and of creating sustainable ongoing employment for people with disability because those subsidies may be withdrawn at any time by current or future governments.

The DRC recommendation

a) Commissioners Bennett, Galbally, Mason and McEwin recommend the Australian Government Department of Social Services should develop and implement a National Inclusive Employment Roadmap to transform Australian Disability Enterprises (ADEs) and eliminate subminimum wages for people with disability by 2034.  

b) The National Inclusive Employment Roadmap should be centred on the following principles: 

• equal access for people with disability to all opportunities for employment, starting with the Australian Public Service and state and territory public services 
• increased availability of jobs for people with disability, especially in: 
• Australian and state and territory public services supported by the payment of full minimum wages to all employees, consistent with the public sector acting as a model employer. This recommendation would operate in advance of Recommendation 7.31 to raise all subminimum wages to the full minimum wage by 2034 
• non-government organisations that receive government grants 
• private companies that receive government procurement contracts 
• availability of evidence-based supports to facilitate job readiness, participation and ongoing development, particularly for people with intellectual disability 
• better pathways to work for people with disability 
• as set out in Recommendation 7.31, lifting wages to 50 per cent of the minimum wage, with all people with disability moving to the full minimum wage by 2034 (noting our expectation that the public sector, as a model employer, will pay full minimum wages to employees with disability before that time) 
• governance and accountability for system change. 

c) The National Inclusive Employment Roadmap should address: 

• the reform of ADEs to operate in accordance with the social firm model, providing open workplaces in which employees with disability can receive support in an integrated setting to undertake work tasks, develop skills and transition to further open employment 
• the establishment of a grant-based Structural Adjustment Fund to support increases in the minimum wage and achieve transformation targets in ADEs 
• support for people with disability to transition to open employment through programs such as the School Leaver Employment Supports program. 

d) To support the National Inclusive Employment Roadmap as ADEs transform into social firms, government procurement rules should also be amended to give preference to enterprises that can demonstrate they provide employment opportunities to people with disability in open, inclusive and accessible settings and pay employees with disability at least the full minimum wage at the time of the procurement process (this recommendation would operate in advance of the general recommendation to raise all subminimum wages to the full minimum wage by 2034). 

e) The implementation of the National Inclusive Employment Roadmap should be monitored by the Disability Reform Ministerial Council.

Why we strongly support with a faster timeline

We believe all segregated and/or exploitative employment can, and should, end within the term of Australia’s Disability Strategy 2021-2031. This applies to all forms of employment under the Supported Wage System (SWS) irrespective of whether a person works in ‘open’ employment or an ADE. In fact, highly profitable businesses and corporations, such as supermarkets and fast food operators, should be required to adhere to the standard mainstream Award wages and conditions for all their employees (without layoffs) as one of the earliest steps in the transition.