ࡱ> _ Tbjbj ;jA\jA\5 )^"^"/0B2B2B2V2V2V282,4V2 ^66(7px7x7L;&<Dj<$VXXXXXX$Ѵ|B2<:L;<<|11x7x7:@???<1x7B2x7V?<V??.ƈH 26x7rOI>Ѱ< RX?"B2Z<<?<<<<<||?<<< <<<<<<<<<<<<<^"> .:   鱨վ the Commission The Victorian Equal Opportunity and Human Rights Commission is an independent statutory body with responsibilities under three laws: Equal Opportunity Act 2010 Racial and Religious Tolerance Act 2001 Charter of Human Rights and Responsibilities Act 2006 The Equal Opportunity Act makes it against the law to discriminate against people on the basis of a number of different personal characteristics. The Racial and Religious Tolerance Act makes it against the law to vilify people because of their race or religion. Under the Equal Opportunity Act and the Racial and Religious Tolerance Act, the Commission helps people resolve complaints of discrimination, sexual harassment and racial or religious vilification through a free and impartial complaint resolution service with the aim of reaching a mutual agreement. The Charter of Human Rights and Responsibilities means that government and public bodies must comply with human rights and must consider relevant human rights when making decisions. The Commissions role is to educate people about the rights and responsibilities contained in the Charter and to report annually to the Victorian Government about the operation of the Charter. The Commission does not handle complaints related to the Charter. Services provided by the Commission include: a free telephone Enquiry Line a free and impartial dispute resolution service information and education about equal opportunity, racial and religious vilification and the Charter of Human Rights and Responsibilities education, training and consultancy services.  鱨վ the Commission The Victorian Equal Opportunity and Human Rights Commission is an independent statutory body with responsibilities under three laws: Equal Opportunity Act 2010 Racial and Religious Tolerance Act 2001 Charter of Human Rights and Responsibilities Act 2006 The Equal Opportunity Act (EOA) makes it against the law to discriminate against people on the basis of a number of different personal characteristics. The Racial and Religious Tolerance Act (RRTA) makes it against the law to vilify people because of their race or religion. Under the Equal Opportunity Act and the Racial and Religious Tolerance Act, the Commission helps people resolve complaints of discrimination, sexual harassment and racial or religious vilification through a free and impartial complaint resolution service with the aim of reaching a mutual agreement. The Charter of Human Rights and Responsibilities (the Charter) means that government and public bodies must comply with human rights and must consider relevant human rights when making decisions. The Commissions role includes educating people about the rights and responsibilities contained in the Charter, reporting annually to the Victorian Government about the operation of the Charter, reviewing programs and practices of public authorities, and intervening in certain matters before courts and tribunals on questions of law. The Commission does not handle complaints related to the Charter. Services provided by the Commission include: a free telephone Enquiry Line; a free and impartial dispute resolution service under the EOA and RRTA; information and education about equal opportunity, racial and religious vilification and the Charter; education, training and consultancy services; legal assistance to courts and tribunals on questions of law; assistance to public authorities on Charter compliance.  1. Introduction The Victorian Equal Opportunity and Human Rights Commission (the Commission) welcomes the opportunity to make submissions into the Willing to Work: National Inquiry into Employment Discrimination against Older Australians and Australians with Disability (the Inquiry). The Commission is making two separate submissions to this Inquiry. This submission addresses the employment of people with disabilities in Victoria, while the accompanying submission addresses the employment of older people in Victoria. As Victorias human rights and equal opportunity agency, the Commission welcomes the opportunity to contribute its expertise from a Victorian perspective to this national inquiry, both regarding compliance with equal opportunity and human rights legislation and in focusing on effective systems and policy reform that will better protect the rights of people with disabilities in employment. The laws under which the Commission has responsibilities are relevant to the Inquiry in a number of ways. Disability discrimination in employment under the Equal Opportunity Act 2010 (Vic) (EOA) is a significant concern for the Commission. The right to equal protection of the law without discrimination under the Charter of Human Rights and Responsibilities 2006 (Vic) (Charter) is also an important protection for people with disabilities employed by a public authority. These laws significantly impact on the lives of people with disabilities in Victoria, with respect to their income and economic participation, professional development, community participation and personal sense of purpose. Disability discrimination in employment not only affects individuals but also deprives industries and workplaces of the valuable set of skills and contributions that people with disabilities have to offer. 2. Structure of this Submission This submission addresses the questions outlined in the discussion paper, Employment discrimination against Australians with disability, with a focus on the Victorian legal context, complaints data on disability discrimination and barriers to employment for people with disabilities. The Commission outlines a series of recommendations at the conclusion of this submission with respect to: Policies, workplace practices and programs for all employers including developing Disability Action Plans, equal opportunity policies and recruitment and workplace policies that support the needs of people with disabilities. Education programs for employers across all sectors and recruitment agencies regarding their legal obligations under anti-discrimination legislation and available government initiatives to support the employment of people with disabilities. Leadership by Governments in actively employing people with disabilities within the Public Service; establishing a disability employment advocacy body; and expanding eligibility criteria for the Employment Assistance Fund to include volunteers with disabilities and remove minimum working hours requirements. Law reform to introduce a direct cause of action under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and inclusion of a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation in anti-discrimination legislation across all Australian jurisdictions. 3. Terminology The term disability is used in this submission. The Equal Opportunity Act 2010 and the Disability Discrimination Act 1992 contain broad definitions of disability. These definitions include physical, intellectual, psychiatric, sensory, neurological and learning disabilities, short-term conditions and illnesses. 4. Legal Context In Victoria, people with disabilities are protected under anti discrimination and human rights laws. The Equal Opportunity Act 2010 (Vic) (EOA) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) prohibit employment discrimination on the basis of disability and set out the rights of all people in Victoria. 4.1 The Equal Opportunity Act The objects of the EOA include the elimination of discrimination, promoting and protecting the right to equality under the Charter, and the identification of systemic causes of discrimination to address social and economic disadvantage. 4.1.1 Discrimination Under the EOA, discrimination means direct or indirect discrimination on the basis of an attribute in an area of public life. Disability is an attribute. There are eight areas of public life where people with disabilities are protected: employment, provision of goods and service, education, accommodation, sport, clubs and club membership, disposal of land and local government. Employers must not discriminate against job applicants with disabilities: in offering HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s4.html" \l "employment"employment; in the terms on which HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s4.html" \l "employment"employment is offered; by refusing or deliberately omitting to offer HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s4.html" \l "employment"employment ; by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program. Employers must not discriminate against an employee with disabilities: by denying or limiting access to opportunities for promotion, transfer or training or to any other benefits connected with the HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s4.html" \l "employment"employment; by dismissing or terminating HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s4.html" \l "employment"employment; by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; by subjecting the employee to any other detriment. Direct discrimination Direct discrimination is when a person treats, or proposes to treat, a person with a disability unfavourably, because of that disability. Direct discrimination often happens because people make unfair assumptions about what people with disabilities can and cannot do. Indirect discrimination Indirect discrimination is when an unreasonable requirement, condition or practice that purports to treat everyone the same ends up either actually, or potentially, disadvantaging someone with a disability. Exceptions An employer may discriminate against a person on the basis of disability where the person with disabilities requires adjustments and such adjustments are not reasonable, or the person with disabilities could not adequately perform the requirements of employment even after the adjustments have been made. In determining what is reasonable, there should be regard for the factors outlined below at 4.1.2 below under reasonable adjustment. 4.1.2 Reasonable adjustment The EOA also establishes a separate stand alone obligation on employers to make reasonable adjustments for people with disabilities in the areas of employment. Failure to make reasonable adjustment may amount to discrimination without reference to direct or indirect discrimination. In recent submissions, the Commission outlined concerns that parties and decision makers at times conflate allegations of indirect discrimination with a failure to provide reasonable adjustments. The Commission, therefore, highlights that each claim of discrimination should be dealt with separately, so as not to confuse the different tests that apply to a claim of indirect discrimination under ss 16 and 18 of the EOA, with an employers failure to make reasonable adjustments for people with disabilities under s 20 EOA. If a person with disabilities requires adjustments in order to perform the genuine and reasonable requirements of employment, then the employer must make reasonable adjustments. In the area of employment, the EOA provides a list of factors that help determine when it might be reasonable for adjustments to be made in a workplace. These factors are: the employees circumstances, including the nature of their disability the nature of the role being offered the type of adjustment that is needed to accommodate the employees needs the financial circumstances of the employer the size and nature of the workplace and the business the effect on the workplace and the business of making the adjustments, including the financial impact, the number of people who would be advantaged or disadvantaged by making them, and the impact on efficiency and productivity of staff the consequences for the employer if the adjustments are made any relevant action plan that has been made under the Commonwealth Disability Discrimination Act 1992 any relevant disability standards made under the Disability Discrimination Act. Adjustments do not need to be made where the relevant activity complies with the Disability Discrimination Act. Exceptions Under the EOA, an employer is not required to make adjustments for people with disabilities if the adjustment is not reasonable, taking into account the factors outlined above; if the employee could not adequately perform genuine and reasonable requirements of the employment even after the adjustments are made; if the employer has complied with or been granted an exception under the Disability Discrimination Act (Commonwealth); or where there is a determination under the Building Act 1993 (Vic). Making reasonable adjustments requires an employer to balance the need for change with, for example, the expense or effort involved in making this change. If an adjustment requires a disproportionately high expenditure or disruption, then it will likely not be reasonable. 4.1.3 Remedies A person with disabilities may make a complaint in relation to employment discrimination to the Commission or directly to the Victorian Civil and Administrative Appeals Tribunal (VCAT). The Commission provides an impartial, fast, flexible, and free dispute resolution process to help people resolve discrimination complaints. The dispute resolution services assists parties to identify the disputed issues, develop options, consider alternatives, and try to reach an agreement. Complaints may also be made directly to VCAT, or to VCAT following dispute resolution. 4.1.4 Positive duty The EOA imposes a positive duty on those with obligations under the Act, including those in the area of employment, not to engage in discrimination, sexual harassment or victimization. The positive duty includes an obligation to take reasonable and proportionate steps to eliminate discrimination, sexual harassment or victimisation as far as possible. This requires a person to be proactive about discrimination and take steps to prevent discriminatory practices before they occur. In determining whether a measure is reasonable and proportionate, the EOA sets out a number of factors that must be considered including: the size of the person's business or operations; the nature and circumstances of the person's business or operations; the person's resources; the person's business and operational priorities; the practicability and the cost of the measures. Measures aimed at preventing discrimination may include staff awareness of zero tolerance policies, action plans to elimination discrimination, audits of policies, good complaints handling or grievance procedures, and mechanisms for reviewing and improving compliance. The positive duty may be implemented progressively over time. It cannot be the subject of a contravention complaint to the Commission for dispute resolution or to VCAT. However, the Commission may investigate a contravention of the positive duty under its investigation function into serious issues relating to a class or group of persons that cannot reasonably be resolved through dispute resolution. 4.2 The Charter of Human Rights and Responsibilities Act The Charter outlines 20 human rights of all people in Victoria, including the right to recognition, equality before the law, the right to take part in public life without discrimination, the right to freedom from slavery, servitude, forced work or compulsory labour. The right to equal protection of the law without discrimination at s 8(3) of the Charter goes beyond formal equality. It allows for disadvantaged or vulnerable people to be treated differently in order to ensure that they are treated equally. The right to effective protection against discrimination is the right not be discriminated against. The Charter requires the Victorian Government, public servants, local councils, Victoria Police and other public authorities to act compatibly with human rights, and to give proper consideration to human rights making decisions. The Charter applies to Parliament, courts, tribunals and public authorities. Although the Charter applies to government employers, it does not apply to employers within private and community sectors unless they are performing functions of a public nature on behalf of the State or a public authority in which case they may be considered public authorities for the purposes of the Charter. Private sector employers may however, as a matter of good practice, elect to comply with the Charter. 4.2.1 Remedies Current remedies The Commission does not handle complaints related to the Charter. The Victorian Ombudsman can receive and investigate HYPERLINK "http://www.humanrightscommission.vic.gov.au/index.php/the-charter/complaints"complaints about whether administrative actions taken by the Victorian government departments, statutory bodies and employees of local government (councils) are in breach of, or have not properly considered, human rights. Complaints about breaches of the Charter can also be made to the HYPERLINK "http://www.ibac.vic.gov.au/"Independent Broad-based Anti-corruption Commission in relation to police misconduct. The Charter does not create a direct cause of action. It does, however, allow a person to raise a human rights argument in an existing legal proceeding. 5. Disability Discrimination Complaints in Employment 5.1 Complaints received by the Commission Over the 2013/2014 and 2014/2015 financial years, the Commission received a total of 695 disability discrimination complaints in the area of employment. This represented 12.2 per cent of all complaints made to the Commission and 48.33 per cent of all complaints made on the grounds of disability discrimination over this two year period. Of all the disability discrimination complaints that the Commission received over the 2013/2014 and 2014/2015 financial years, employment was the area that received the highest number of complaints (695; 48.3 %), followed by goods and services (485; 33.7 %). Table 1 shows the total number of disability discrimination complaints in the area of employment for each of these two financial years, both as a percentage of complaints to the Commission overall and as a percentage of complaints on the grounds of disability. Table 2 shows a breakdown of disability discrimination complaints by area for the last two financial years. Table 1. Disability discrimination complaints in employment for 2013/2014 and 2014/2015 financial years 2013/20142014/2015Total*Number of disability discrimination complaints in employment340355695Percentage of total disability discrimination complaints49.6 %47.2 %48.3 %Percentage of total complaints (all attributes) 12.5 %11.9 %12.2 %*Note: A complainant may make allegations of disability discrimination in employment against one or more respondents i.e. employer, manager, co-worker which equates to 3 complaints of disability discrimination in employment Table 2. Disability discrimination complaints by area for 2013/2014 and 2014/2015 financial years as a percentage of total disability discrimination complaints Area of Complaint2013/2014 (no, % of total)2014/2015 (no, % of total)Sum of two years (no, % of total)Employment 340 (49.6 %)355 (47.2 %)695 (48.3 %)Goods and Services223 (32.5 %)262 (34.8 %)485 (33.7 %)Education 73 (10.6 %)53 (7.1 %)126 (8.8 %)Accommodation 36 (5.3 %)79 (10.5 %)115 (8.0 %)Sport 7 (1.0 %)2 (0.3 %)9 (0.6 %)Clubs6 (0.9 %)1 (0.1 %)7 (0.5 %)Local Government1 (0.1 %)0 (0.00 %)1 (0.1 %)Total 686 (100 %)752 (100 %)1,438 (100 %) The most common disability type among complainants was physical disability (68), followed by mental illness (48) and work related injury (25). Table 3 shows a breakdown of disability types of complainants who lodged disability discrimination complaints in the area of employment over the last two financial years. Table 3. *Complaints of disability discrimination in employment by disability type for 2013/2014 and 2014/2015 financial years. Disability Type2013/2014 2014/2015 Sum of two years Physical 353368Mental illness 222648Sensory 257Neurological -77Work related injury81625Intellectual 235Short-term illness 7714WorkCover 358Total 79102181*The disability type is based on the complainants demographic. A complainant may make disability discrimination complaints against one or more respondents. Of complainants who made disability discrimination complaints in employment and provided their age, the highest number of complainants were within the 50-59 year age bracket (31), followed by those within the 40-49 year age bracket (19) and 30-39 year age bracket (16). Table 4 shows the age demographic of complainants who lodged disability discrimination complaints in the area of employment over the last two financial years. Table 4. *Age demographic of complainants who made disability discrimination complaints in employment for 2013/2014 and 2014/2015 financial years. Age in years2013/2014 2014/2015 Sum of two years 0-9---10-191-120-2927930-394121640-499101950-599223160-69751270-79-1180+---Total325789*Demographic information is provided on a voluntary basis by complainants. Table 4 represents those complainants who have provided their age. 5.2 Case Studies The following three case studies are examples of disability discrimination complaints in the area of employment that the Commission has dealt with over the past two years. For reasons of confidentiality, all case studies have been de-identified. 5.2.1 Case study 1 Alleged discrimination involving failure to modify work duties The complainant worked in the aviation industry and part of her duties required her to transport passengers in wheelchairs. She suffered a back injury and sought light duties as recommended by her doctor. The complainant alleged the respondent did not modify her duties in accordance with her medical restrictions, which exacerbated her injury. This led to the respondent raising poor work performance with her and she felt she had no alternative but to resign from her employment. The parties agreed to attend a conciliation conference and the matter was resolved via negotiation for $6,000 compensation. 5.2.2 Case study 2 Alleged discrimination involving unfair dismissal The complainant suffers from migraines. She alleged that she was dismissed from her employment because she took too much sick leave. The complainant considered her employer could have made more adjustments to accommodate her disability. The parties agreed to attend a conciliation conference and the matter was resolved via negotiation for $6,000 compensation. 5.2.3 Case study 3 Alleged discrimination involving bullying and failure to provide reasonable adjustments The complainant was employed by a manufacturing company. She walked with a limp due to an accident and having hip replacement surgery. The complainant alleged that a work colleague made fun of her disability and imitated her limp. The work colleague also refused to assist her to retrieve items from a low cupboard when she was experiencing difficulty bending and crouching due to her disability. On another occasion, she was pushed by this work colleague and nearly fell over as she has difficulty balancing. The parties agreed to attend a conciliation conference and the matter was resolved via negotiation for $8,000 compensation, revision of the companys grievance and equal opportunity policy and an apology. 6. Barriers to Employment 6.1 Barriers to Employment for People with disabilities Victorians with disabilities can face a range of barriers at different stages of employment, including recruitment, retention and re-entering the workforce. The Commissions Disability Reference Group (DRG) includes people with disabilities, parents of children with disabilities, service providers and advocates who assist the Commission to identify systemic discrimination issues affecting people with disabilities. In addition to analysing complaints data, the Commission consulted with DRG members to gain their perspectives on the barriers that people with disabilities experience in employment. Many of the barriers to employment that DRG members identified coincided with those outlined in the 鱨վs (AHRC) Issues paper: Employment discrimination against Australians with disability, with added details pertaining to each barrier. The DRG identified the following barriers relating to employment for people with disabilities: Discriminatory attitudes and behaviours of employers during recruitment: Employers can have a number of myths, stereotypes and incorrect assumptions regarding the employment of people with disabilities, e.g. employees with disabilities take more sick leave than other employees, will not be able to perform the inherent requirements of the job or will not fit into the team. Lack of awareness among employers of their legal obligations: Many employers are not aware of their obligation to provide reasonable adjustments. In particular, employers in smaller businesses can be less aware of these obligations compared to employers within larger companies and government bodies. Lack of awareness about government-funded support: JobAccess provides information to employers about employing people with disabilities, including advice on reasonable adjustments and workplace modifications. The Employment Assistance Fund provides financial assistance for workplace modifications and services. Many employers and people with disabilities are unaware of these Australian government initiatives. Employers can instead assume that they will have to finance workplace accommodations independently. People with disabilities can experience difficulty negotiating reasonable adjustments, including flexible working arrangements: Case law indicates that job seekers and employees should ensure the employer has considerable information to determine the reasonableness of an adjustment. This may include disclosing their disability, and providing medical information, advice and appropriate knowledge to the employer in order to receive such adjustments. Many job seekers and employees hesitate to disclose their disability out of fear of being discriminated against. For many people with disabilities, this fear is justified. Employers can be unsure how to accommodate fluctuating disabilities in the workplace: Employees with disabilities that are fluctuating in nature (e.g. mental illness, chronic fatigue, arthritis) may require reasonable adjustments in the workplace or leave arrangements at some times but not others. Employers can be unsure how to accommodate employees with fluctuating disabilities in the workplace. People with disabilities can also experience difficulties returning to the workforce after prolonged periods of ill-health. Barriers to accessing education: People with disabilities are less likely to have completed Year12 and are less likely to hold a post-school qualification. In 2012, the Commission released a landmark report Held Back: The Experiences of Students with Disability in Victorian Schools, which identified a range of barriers and areas for improvement in relation to enrolment, participation, support services, curriculum development and delivery, and harassment and victimisation. Fewer options to travel to and from work: There are fewer options for people with disabilities in travelling to and from their workplaces. For some people with disabilities, wheelchair accessible taxis are their only means of travelling to and from work. The availability of such taxis is limited and costly, even after partial government subsidies. People with disabilities who receive a funded package through the National Disability Insurance Scheme are not eligible for a mobility allowance. The low availability of disability accessible parking spaces can also limit access to workplaces. Inadequate assistance in job searching: While Disability Employment Services (DES) offer general job seeking skills (e.g. resume development, interview skills), these do not address the systemic barriers employment for people with disabilities. DRG members raised concerns that DES had few connections to employers in the open employment market, limiting the extent to which these services could assist people with disabilities to gain employment in a field that matched their skills and interests. In addition to the barriers to gaining and maintaining employment, the DRG also highlighted some additional experiences of many people with disabilities who are in employment, as summarised below: Under-employment: While some people with disabilities require part-time employment or flexible working arrangements, there are also employees with disabilities who are not employed at their full working capacity. This can include people with disabilities being employed in roles that are below their skill level, or in an area unrelated to their qualifications, training or interest. Further, employees with disabilities may have the capacity to work a greater number of hours than the positions that are offered to them. Positions available to people with disabilities can be archetyped: Many positions available to people with disabilities are within the disability sector or government initiatives that have a focus on disability. People with disabilities can make a valuable contributions and it is critical the work of the disability sector is informed by direct input from people with disabilities. However, people with disabilities have a broad range of vocational qualifications, skills and interests and it is critical that employment opportunities for people with disabilities reflect this. 6.2 Barriers to Employment for Specific Groups of People with Disabilities The Commission acknowledges that many people with disabilities face systemic discrimination in employment based on intersectional identities, for example women with disabilities, older people with disabilities, young people with disabilities, Aboriginal and Torres Strait Islander peoples with disabilities, people with disabilities from culturally and linguistically diverse (CALD) backgrounds and people with disabilities who are lesbian, gay, bisexual, transgender and intersex (GLBTI). 6.2.1 Women with disabilities Women with disabilities aged between 15 to 64 years have a labour force participation rate of 49.0 per cent, which is lower than that of men with disabilities (56.6 per cent). As at May 2015, the average weekly earnings of women was 17.9 per cent less than that of men. The gender pay gap has ranged between 15 and 19 per cent for the past two decades. Reasons for the gender pay gap include: Industries and jobs dominated by women tend to attract lower wages than those dominated by men. Fewer women in senior positions and lower availability of part-time or flexible senior roles that accommodate womens unpaid caring work. This can have a greater impact on women with disabilities, who often seek part-time or flexible working arrangements, both as a reasonable adjustment to accommodate the manifestation of their disability and to accommodate the caring responsibilities that they may have. Discrimination, both direct and indirect. Women with disabilities can experience double discrimination, both on the grounds of their gender and their disability. Experiences of family violence can also detrimentally affect labour force participation. Research shows that it is predominantly women that experience domestic and family violence. Women with disabilities are more likely to experience partner or sexual violence, of greater severity and for a longer period of time than women without disabilities. Paid employment plays an important role in promoting womens independence and wellbeing upon exit from violent relationships. Financial security is also a key enabler for survivors of family violence to leave a violent relationship. 6.2.2 Older people with disabilities Some of the barriers to employment are likely to differ for people with disabilities who are ageing and people who develop disability with age. Many people with disabilities who are ageing would have experienced barriers to employment throughout their working life, which could impact on their prospect of finding work in their older age and also on the amount of superannuation as they approach the age of retirement. Employees with degenerative disabilities (e.g. multiple scoliosis, muscular dystrophy, arthritis) may require additional reasonable adjustments in their workplace as they age, such as modified work tasks, more flexible working hours, assistive aides and equipment. Employees who develop disabilities with age may be less aware of their rights to reasonable adjustments in the workplace than other employees with disabilities who have negotiated workplace adjustments throughout their working life. Some employees may develop disabilities and become unable to perform their previous duties and thus may require modified work duties or, in some cases, retraining. A more comprehensive outline of barriers to employment for older people has been included in the supplementary submission to this Inquiry. 6.2.3 Young people with disabilities Many young people enter the workforce via casual unskilled work and volunteer work, often for a small number of hours per week alongside study. There are barriers for young people with disabilities entering the workforce through these means. Many young people with a physical disability in particular are not suited to unskilled work, meaning that their debut into the workforce depends on them completing a qualification. The Employment Assistance Fund is not available to volunteers or employees who work fewer than eight hours per week, which further limits work experience opportunities for people who require workplace adjustments. 6.2.4 Aboriginal and Torres Strait Islander people with disabilities In 2011, Aboriginal and Torres Strait Islander people aged between 15 to 64 years had a labour force participation rate of 55.9 per cent, compared with 76.4 per cent for non-Aboriginal or Torres Strait Islander people. The lower employment rates have been attributed to ill health, disability and discrimination, among other factors. Aboriginal and Torres Strait Islander people with disabilities tend to have more severe disabilities than non-Aboriginal or Torres Strait Islander people across all age groups. People with more severe disabilities often require more targeted job search support, given that there is a smaller pool of suitable jobs. They may also require a greater number of workplace adjustments. Aboriginal and Torres Strait Islander communities have a substantially higher prevalence of cardiovascular disease, diabetes and mental illness compared to non- Aboriginal and Torres Strait Islander populations. Barriers to negotiating flexible work and leave arrangements are likely to disproportionately impact on Aboriginal and Torres Strait Islander people with these conditions. Experiences of compounding discrimination on the basis of cultural identity and disability can be a barrier to employment for Aboriginal and Torres Strait Islander people with disabilities. In 2013, the Commission published a research report, Reporting Racism, to document the nature and extent of racism in Victoria. Approximately one third of the 227 survey respondents had witnessed or experienced racism at work. The Commissions findings were consistent with research conducted by VicHealth, which found that 42 per cent of Aboriginal and Torres Strait Islander survey respondents reported experiences of racism in employment. Experiences of discrimination included unfair treatment when applying a job, being denied work opportunities, inappropriate questioning and comments and being subjected to racist jokes or derogatory comments in the workplace. Legal definitions of disability do not neatly coincide with traditional Aboriginal and Torres Strait Islander conceptualisations of peoples abilities and strengths. This can have implications for Aboriginal and Torres Strait Islander people identifying as having a disability and thus seeking reasonable adjustments in employment. 6.2.5 People with disabilities from culturally and linguistically diverse backgrounds Many people from CALD backgrounds can experience discrimination in employment. In an experimental research study conducted in 2010, applicants with Chinese and Middle Eastern sounding names needed to send out approximately 65 per cent more applications in order to receive a call-back rate from employers that matched that of applicants with Anglo-Saxon sounding names. For people with disabilities from CALD backgrounds, discrimination in recruitment can have a compounding effect. People from CALD backgrounds can also experience discrimination in other aspects of employment. As detailed above, the Commissions research report Reporting Racism found that approximately one third of survey respondents had witnessed or experienced racism at work. Similarly, research by VicHealth found that 33 per cent of CALD survey participants reported experiencing racism in connection with work. Added to this, people from CALD backgrounds can be less familiar with Australian anti-discrimination laws and avenues for complaint handling. Racism can compound other barriers to employment that people with disabilities can experience. 6.2.6 People with disabilities who are lesbian, gay, bisexual, transgender and intersex Many LGBTI people report experiences of discrimination in Australian workplaces. Some such experiences include: social exclusion or ridicule in the workplace; being subjected to unreasonable work expectations; denial of job entitlements; denial of promotion and career development opportunities, in some extreme cases, sexual harassment and threats of violence. Further, For LGBTI people with disabilities, experiences of discrimination on the basis of their sexual and gender identities can be compounded by discrimination and other barriers to employment associated with their disability. The prevalence of mental illness among LGBTI people is higher than that of the general Australian population. In a large cohort Australian survey, 37 per cent of LGBTI people had been diagnosed with or treated for a mental illness over the past three years, with anxiety and depression being the most prevalent mental illnesses. By comparison, 20 per cent of the general Australian population have had a mental illness in the past year. Therefore, barriers to employment for people with mental illness (e.g. employers being unsure to accommodate fluctuating disabilities in the workplace and returning to the workforce after prolonged periods of ill-health) are of particular relevance to LGBTI people. 7. Recommendations The Commissions research into equal opportunity in the workplace has found that for change to be effective, long-term and sustainable, it must occur on a number of levels, including at industry-wide, organisational and individual levels. The Commission puts forward the following recommendations with respect to: Policies, workplace practices and programs for all employers Education Leadership and advocacy Law reform 7.1 Policies, Workplace Practices and Programs for All Employers Develop a Disability Action Plan that includes practices and policies that will enhance the recruitment and retention of people with disabilities, including new policies and practices that will eliminate discrimination. Organisations and business should develop a plan that is relevant to its size, resources and functions. Develop an equal opportunity policy if such policy does not exist in your organisation or business. Develop recruitment policies and practices that accommodate the needs of people with disabilities, including reasonable adjustments. Some examples of adjustments that an employer may need to make include: Reviewing and making any necessary changes to the position description so that all applicants can access and understand it. Making materials such as position descriptions, selection criteria and application forms available in other formats if an applicant requests it. Arranging for interpreters or other supports during interviews if requested by an applicant Making the assessment process accessible, e.g. if the assessment process involves reading and commenting on a document, you may need to make adjustments for a person with a vision impairment to participate. Although some policies and practices will need to be tailored to the organisation or business, some additional policies and practices in recruitment may include: A statement in position descriptions welcoming applicants with disabilities and other diverse backgrounds, e.g. statement that the organisation or business is an equal opportunity employer and/or that applicants with disabilities and diverse backgrounds are encouraged to apply. Determine strategies for reaching the widest possible pool of applicants, such as using specialist media for specific cultural groups, Indigenous media, social media, information networks, community groups and organisations, industry groups and trade unions. Include a contact person in position descriptions who can arrange reasonable adjustments during the interview and recruitment process. Give careful consideration to inherent requirements of the job when developing position descriptions. Draft key selection criteria that outlines outcomes to be performed rather than the method for performing them. Avoid selection processes that may unfairly disadvantage applicants with disabilities, e.g. avoid eliminating applicants based on periods of leave in their resum. Consider creating positions specifically for people with disabilities. Targeted recruitment may include flexible job design catered specifically to the skills of applicants with disabilities. Develop workplace practices that accommodate the needs of people with disabilities, including reasonable adjustments. Although some policies and practices will need to be tailored to the organisation or business, some examples include: Providing telephone typewriter (TTY) phone access for employees with hearing or speech impairments. Purchasing screen reading software for employees with a vision impairment. Approving more regular breaks for people with chronic pain or fatigue. Providing desks with adjustable heights for people using a wheelchair. Flexible working hours, e.g. flexible start and finish times, part-time work, job sharing. Time in lieu arrangements can assist employees with fluctuating health conditions to work during periods when they are able to and take leave during periods of ill-health. Flexible leave options, including leave without pay, extended or special leave options. Flexible work location, e.g. offering employees options to work from home and use technology to liaise with colleagues and stakeholders. For staff members who do work off-site, measures should be taken to include employees with disabilities in staff work and social activities. Reviewing and, if necessary, adjusting the performance requirements of the job. This may be appropriate either when an employee with disabilities commences a job, or when an employee returns to work after a period of illness or recovering from an injury. Some additional policies and practices to support the employment of people with disabilities may include: Appointing a disability contact officer within your organisation or business with whom employees with disabilities can discuss working arrangements, reasonable adjustments and complaint mechanisms to report discrimination and bullying. Developing and review policies and procedures for maintaining confidentiality within the workplace when an employee or job applicant discloses that they have a disability in order to maximise privacy protections. Further to the above, the Commission published the Guideline for the Recruitment Industry and Employers: Complying with the Equal Opportunity Act 2010 in Recruitment in 2014. This guideline provides guidance to employers in meeting their obligations under the Equal Opportunity Act 2010, including reasonable adjustments that may be made in recruitment and employment and positive steps that employers can take in preventing discrimination. 7.2 Education Governments and Peak Industry Bodies should deliver education programs for employers in government, private and community sectors regarding their legal obligations under anti-discrimination legislation and government initiatives available to support employment of people with disabilities, e.g. JobAccess, Employment Assistance Fund. This should incorporate a communications strategy to maximise effectiveness and spread. This may involve holding seminars at different times of the day or online, issuing media releases, using social media or publishing articles in relevant industry journals. Attention should be given medium to small organisations and businesses that tend to be less aware of these obligations and initiatives. Education programs should be delivered across a range of vocational fields and all government departments. Recruitment agencies should educate and remind employers of their legal obligations under equal opportunity legislation. Recruitment agencies must not follow through with discriminatory requests from an employer that relate to a persons disability or another protected attribute (unless they relate to an action that is a special measure or falls under an exception or exemption). Upon receiving such requests, recruitment agencies should inform the employer that they are putting both themselves and the agency at risk of receiving complaints of discrimination. Recruitment agencies can also emphasise to the employer that they are unnecessarily limiting their options in the job market by not seeking a wider range of applicants. 7.3 Leadership and Advocacy Both Australian and State Governments should show stronger leadership by actively employing people with disabilities within the Public Service. This should include: Targeted recruitment, such as positions exclusively for applicants with disabilities. Scholarship programs for tertiary students with disabilities. Graduate and internship programs for people with disabilities. Consider setting targets for the percentage of employees with disabilities, including key performance measures and review dates. A contact officer who can arrange reasonable adjustments for applicants and employees with disabilities during recruitment and employment. This role may include liaising with applicants and employees with disabilities, interview and selection panels and managers. These initiatives should be implemented across all Government Departments to enable people with disabilities to gain employment that aligns with their interests, skills and professional development goals. Peak industry bodies should promote standards of behaviour through discussion, leadership and modelling of behaviour. This may include a communications plan on how to promote employment and equality for people with disabilities within the industry and individual workplaces, such as publishing articles industry newsletter and journals, publishing examples of good practice case studies of employing people with disabilities in the industry. A Government-funded disability employment advocacy body should be established. This service should provide individual support for job seekers with disabilities to gain and retain employment in their chosen vocation, including liaising between employers and applicants or employees with disabilities to negotiate reasonable adjustments. Expand the eligibility criteria for the Employment Assistance Fund to include volunteers with disabilities and remove the requirement for a minimum number of hours of employment per week. This would enable people with disabilities to access work experience opportunities aligned with their vocational interests across a range of workplaces, thereby enhancing their pathways into employment. 7.4 Law Reform 7.4.1 Recommendations of the Eight Year Review of the Charter During 2015, the Charter was independently reviewed. The Review, led by Michael Brett Young, in its report From Commitment to Culture: the 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, recommended that the Charter be strengthened. The Review concurred with the Commissions recommendation that the Charter be amended to provide the Commission with the statutory function and resources to offer dispute resolution for disputes under the Charter. In addition, the Review recommended that remedies under the Charter be improved by enabling a direct cause of action in VCAT for people who claim a public authority has breached rights under the Charter and if VCAT find a public authority acted incompatibility with the Charter it should have the power to grant any relief or remedy considered just and appropriate excluding damages. 7.4.2 Inclusion of a Positive Duty in Anti-Discrimination Legislation Under section 15 of the EOA, employers and the recruitment industry have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation. The positive duty is about being proactive. It means eliminating causes of discrimination that may be part of your systems of work, not just responding to complaints that arise. In the same way occupational health and safety laws require you to take steps to improve your procedures, policies and practices to avoid workplace injuries occurring, the positive duty requires you to do the same to prevent discrimination from occurring. Victoria is the only Australian jurisdiction that includes the positive duty in its EOA or equivalent. The Commission recommends that other jurisdictions consider incorporating a positive duty into their anti-discrimination legislation. The Guideline for the Recruitment Industry and Employers: Complying with the Equal Opportunity Act 2010 in Recruitment that the Commission published in 2014 provides further information on how employers can meet their positive duty. 8. Conclusion Addressing and preventing discrimination in employment ensures that society and the economy continue to benefit from the significant contribution of Victorians with disabilities, while also enhancing individual wellbeing and self-esteem. Overall this submission seeks to demonstrate that human rights and preventing discrimination are central to enhancing the realisation of human rights of people with disabilities and facilitate their meaningful economic participation and inclusion in the workforce. The contact officer for this submission is Bridie Hudson, Policy and Project Officer. She may be contacted on bridie.hudson@veohrc.vic.gov.au.  See VEOHRC Submission in RW v State of Victoria, 14 July 2014 <HYPERLINK "http://www.humanrightscommission.vic.gov.au/index.php/component/k2/item/1201-rw-v-state-of-victoria-feb-and-jul-2014"http://www.humanrightscommission.vic.gov.au/index.php/component/k2/item/1201-rw-v-state-of-victoria-feb-and-jul-2014>.  In the matter of RW v State of Victoria, area of public life was education under s 38 EOA rather than employment. In the Commissions view, the issue of separating indirect discrimination claims from reasonable adjustment claims is the same regardless of the area of public life.  See EOA s 40.  EOA s 15.  EOA s 15(6).  Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37 (4 March 2013), Justice Tate JA [210]; Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [288].  See Justice Tate JA Victorian Toll & Anor v Taha and Anor; State of Victoria v Brookes & Anor [2013] VSCA 37 [209]; Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [141].  See principles 15, 17 to 21, the Guiding Principles on Business and Human Rights, United Nations Human Rights Council resolution 17/4 of 16 June 2011.  Muller v Toll Transport Pty Ltd (2) (Human Rights) [2014] VCAT 472 (24 April 2014) [74].  Australian Bureau of Statistics (2009) Education Disability Australia, cat. no. 4446.0 < HYPERLINK "http://www.abs.gov.au/ ausstats/abs@.nsf/mf/4446.0" http://www.abs.gov.au/ ausstats/abs@.nsf/mf/4446.0>.  Victorian Equal Opportunity and Human Rights Commission, Held Back: The Experiences of Students with Disability in Victorian Schools (Report) (2012).  Labour force participation rates for women without disability is 76.5 per cent, compared to that of men without disability (88.5 per cent). Australian Bureau of Statistics (2010), Summary of Disability and Labour Force Participation Labour Force Participation Rates by Whether has a disability, graph 1, Survey of Disability, Ageing and Carers, 2012.  Australian Bureau of Statistics (2015), Average Weekly Earnings, Australia, May 2015, cat. no. 6302.0 .  Australian Government, Workplace, Gender and Equality Agency (2015) Gender Pay Gap Statistics, 3.  Ibid.  Ibid.  Ibid.  Our Watch: End Violence Against Women and 鱨վ (September 2014) Key terms, definitions and statistics, Policy Brief 1.  State of Victoria, Department of Human Services, Victorias action plan to address violence against women and children 2012-15 (2012) 26 .  R Braaf & I Barrett-Meyering. Seeking security: promoting womens economic wellbeing following domestic violence, Australian Domestic and Family Violence Clearing House (March 2011).  Victorian Equal Opportunity and Human Rights Commission, Submission to the Royal Commission into Family Violence, 28 May 2015.  Australian Government, Department of Social Services, Employment Assistance Fund Guidelines, December 2014, 2.1 .  Australian Bureau of Statistics (2014), Exploring the gap in labour market outcomes for Aboriginal and Torries Strait Islander Peoples, cat. no. 4102.0 < HYPERLINK "http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4102.0main+features72014" http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4102.0main+features72014>.  Matthew Gray, Boyd Hunter and Shaun Lohoar (2012), Increasing Indigenous Employment Rates, Closing the Gap Clearing House: Australian Institute of Health and Welfare and Australian Institute of Family Studies, 10-11.  Australian Bureau of Statistics (2013) Comparison of Disability Prevalence Between Aboriginal and Torres Strait Islander Peoples and Non-Indigenous Peoples, cat. no. 4433.0.55.005 < HYPERLINK "http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4429.0main+features100292009" http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4429.0main+features100292009>.  National data shows that participation in employment decreases as severity of disability increases: Australian Bureau of Statistics (2012) Disability and Labour Force Participation, cat. no. 4433.0.55.006 < HYPERLINK "http://www.abs.gov.au/ausstats/abs@.nsf/mf/4433.0.55.006" http://www.abs.gov.au/ausstats/abs@.nsf/mf/4433.0.55.006>.  Australian Health Ministers Advisory Council (2008) Aboriginal and Torres Strait Islander Health Performance Framework Report 2008, Canberra, 34, 38, 40; Parker, R. Mental Illness in Aboriginal and Torres Strait Islander Peoples Puride, Dudgeon and Walker (eds) Working Together: Aboriginal and Torres Strait Islander Mental Health and Wellbeing Principles and Practice (Australian Council for Educational Research, the Kulunga Research Network, and Telethon Institute for Child Health Research, 2010), 669.  Victorian Equal Opportunity and Human Rights Commission, Reporting Racism (Report) (2013), 20.  Victorian Health Promotion Foundation, Mental health impacts of racial discrimination in Victorian Aboriginal Communities, above n 5, 4. This contrasts with findings of the Melbourne Institute of Applied Economic and Social Research who, when analysing data from the Household, Income and Labour Dynamics in Australia (HILDA) surveys of 2008 and 2010 found the incidence of perceived employment discrimination was 11.6 per cent among Indigenous job applicants, and 10.4 per cent of Indigenous employees (based on a nationally representative sample). Markus Hahn and Roger Wilkins, Perceived Job Discrimination in Australia: Its Correlates and Consequences, Melbourne Institute Working Paper Series, Working Paper No. 9/13 (2013) 9.  Victorian Equal Opportunity and Human Rights Commission, Reporting Racism (Report) (2013) p. 20.  Alison Booth, Andrew Leigh and Elena Varganova Does racial and ethnic discrimination vary across minority groups? Evidence from a field experiment (2010) 74 Oxford Bulletin of Economics and Statistics 4, 55760.  Victorian Equal Opportunity and Human Rights Commission, Reporting Racism (Report) (2013) p. 20.  Victorian Health Promotion Foundation, Mental health impacts of racial discrimination in Victorian culturally and linguistically diverse communities Experiences of racism survey: a summary (Report) (2012), 5.  See Ian Smith, Lindsay Oades and Grace McCarthy, The Australian corporate closet, why it's still so full: a review of incidence rates for sexual orientation discrimination gender identity discrimination in the workplace 9(1) Gay and Lesbian Issues and Psychology Review 51, for a review.  Jude Irwin, Discrimination against gay men, lesbians and transgender people working in education (2002) 14(2) Journal of Gay and Lesbian Social Services 65; Paul Willis, It really is water off our backs: Young LGBQ peoples strategies for resisting and refuting homonegative practices in Australian workplaces (2009) 5(3) Gay and Lesbian Issues and Psychology review 139142.  William Leonard, Anthony Lyons and Emily Bariola, A closer look at Private Lives 2: Addressing the mental health and well-being of lesbian, gay, bisexual and transgender (LGBT) Australians (Report) (2015) The Australian Research Centre in Sex, Health & Society, La Trobe University: Melbourne, 15.  Australian Bureau of Statistics. (2008). National Survey of Mental Health and Wellbeing: Summary of Results 2007, cat. no. 4326.0 .  Australian Bureau of Statistics (2015). Disability and Labour Force Participation, 2012, cat. no. 4433.0.55.006 < HYPERLINK "http://www.abs.gov.au/ausstats/abs@.nsf/mf/4433.0.55.006" http://www.abs.gov.au/ausstats/abs@.nsf/mf/4433.0.55.006>.  Michael Brett Young, From Commitment to Culture: the 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (1 September 2015).  See ibid Recommendation 23.  See ibid Recommendation 27(a).  Victorian Equal Opportunity and Human Rights Commission, Recruitment Industry and Employers: Complying with the Equal Opportunity Act 2010 in Recruitment (Guideline) (2014), 13, 1719.     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