It is generally against the law to treat you unfairly or harass you, because of:
• Any disability you have now; • Any disability that someone thinks you have now; • Any disability you had in the past, or that someone thinks you had in the past; • Any disability that someone knows you will get in the future, or thinks you might get in the future; • Any actual past, existing or future disability of any of your relatives, work colleagues, or people you associate with; and • Any past, existing or future disability that someone thinks that any of your relatives, work colleagues or people you associate with had in the past, has now, or will have in the future.
The term disability is very broad indeed. Disability includes:
• Physical disability; • Physical illness or disease that makes, or has made, any part of the body or brain work differently; • Mental or psychiatric disability — including any behavioural disorder; • Intellectual disability; Learning difficulty; • Disfigurement or different formation of any part of the body; and • Any organism in the body that could cause disease or illness — for example, hepatitis with no symptoms or HIV with no symptoms.
Principle 3 of the United Nations (UN) Declaration on the Rights of Mentally Retarded Persons states that:
“The mentally retarded person has a right to economic security and to a decent standard of living. He has the right to perform productive work or to engage in any other meaningful occupation to the fullest possible extent of his capabilities”.
Principle 7 of the UN Declaration on the Rights of Disabled Persons states that:
“Disabled persons have the right to economic and social security and to a decent level of living. They have the righ4 according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions”.
The key elements of these two Principles are that people with disabilities have the right to:
• Economic security; • Useful, productive work; and • Be recognised as people with individual capacities and skills.
Further, the first recommendation in the area of employment made by the New Directions report states that:
“All Commonwealth employment programs (should) be strongly encouraged to move towards integration”.
Disability Services Act 1986 (as amended 1 May 2018)
The Disability Services Act nominates two 'employment service types' which the Federal Government is prepared to fund:
1) 'Competitive employment training and placement services' are defined as services to assist persons with disabilities to obtain and retain paid employment in the workforce and include:
(a) Services to increase the independence, productivity and integration of persons with disabilities in the workplace;
(b) Employment preparation, and employment and vocational training services; and
(c) Services to assist the transition of persons with disabilities from special education, or employment in supported work settings, to paid employment in the workforce.
2) 'Supported employment services' are defined as services to support the paid employment of persons with disabilities, being persons:
(a) For whom competitive employment at or above the relevant award wage is unlikely; and
(b) Who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.
Clearly, the range of types of employment which can receive funding under these two 'employment service types' is large, and enables the Federal Government to meet some of the recommendations of New Directions.
Project workers interviewed and collected information from people with disabilities, parents and advocates and a range of people involved in the employment field. Some of the comments obtained, which relate to services funded under the Disability Services Act, are recorded below, on a state by state basis. Generally, the information suggests that many organisations currently providing employment services do not comply with the Principles and Objectives of the Disability Services Act and that sheltered workshops are as inadequate now as at the time of publication of New Directions.
The federal Department of Community Services and Health must ensure that adequate mechanisms for transfer are provided, that sufficient funding is available, and that the transition date of 1992 is adhered to by organisations which provide employment.
Sheltered Employment Allowance
Wages in sheltered workshops are currently paid in conjunction with a government benefit called the Sheltered Employment Allowance (SEA). This allowance is payable to a person with a disability who is engaged in sheltered employment at an approved workshop if she or he would otherwise qualify for an Invalid Pension (IP). This requirement means that the person must be 85% incapacitated for work. It currently pays a weekly rate of $120.05 plus an incentive allowance equivalent to rent assistance of $15. The SEA is paid by the Department of Social Security to the workshop management, and it is then paid by the workshop, along with any 'wage' to the person with the disability. The maximum a person on this benefit is allowed to earn without tapered reductions to the benefit is $40 per week. Extra income which amounts to $81 or more will result in the forfeiture of Pensioner Health Benefits concessions. Such provisions represent disincentives to workers who might otherwise attempt to maximise their income; it also encourages sheltered workshop management to use income test thresholds to determine maximum rates of pay.
The Department of Social Security's arrangements which provide income support for people with disabilities are comparatively complex. Primarily, income support for people with disabilities is provided through:
• The invalid pension; • The sickness benefit; and • A range of repatriation pensions and allowances. • Other relevant cash payments include: • Special benefit; • Sheltered employment allowance; • Rehabilitation allowance; • Carer's pension; • Mobility allowance; and • Domiciliary nursing care benefit.
There is no special law setting out and protecting the rights of workers in sheltered workshops. The relevant areas of law relating to conventional employment include industrial awards, the common law and legislation.
The legal status of workers in sheltered workshops revolves around the question as to whether they are employees or consumers of a service. There has been no determination of this question at law.
The usual test of employment status rests on the existence of a contract for service or contract of employment. Such contracts need not be formal, but can be implied from the actions or words of the parties involved
States and Territories have worker's compensation legislation which sets up compulsory schemes for employers to enable them to pay compensation to workers injured in the course of their employment, or travelling from or to work; such legislation covers workers who are employees.
Industrial awards are agreements that set minimum standards for wages, penalty and over-time rates, sick pay entitlements, rights to information about pay and any deductions made, and many other detailed requirements for work conditions. Awards are the main source of the terms and conditions of work for 90% of 's workforce.
The common law obliges an employer to provide a safe workplace and suitable work as well as reasonable notice of dismissal.
The functions of the CES, according to section 6(a) (ii) of the Commonwealth Employment Service Act 1978, include the following:
“To make special arrangements and provide special facilities wherever necessary so as to assist such persons who are immigrants or Aboriginals, who are young or handicapped...or who otherwise have special requirements or disadvantages in relation to employment.”
Many factors exist which constitute substantial barriers to the ability of people with disabilities to find work in the open workforce. These include the attitude of employers to the employment of people with disabilities, the financial disincentives to open employment, the lack of what can be essential personal care in the workplace, and the indirectly discriminatory policies of some major employers.
In general, you have the right to apply for and be fairly considered for jobs, apprenticeships and traineeships on the basis of merit. In other words, if you are the best person for the job and you can do all the essential things that the job requires, then you should get it. In addition, employers must provide any special facilities or services you need to do the job – unless it would cause them “unjustifiable hardship” to do so. Obviously there will be times when an employer will be able to say that it would cost them too much, for example to install lots of ramps or provide you with expensive special equipment. Before they decide that this would cause them unjustifiable hardship they must first take into account the benefit that you, and the workplace generally, would get from the service or facility if they provided it.
Employers can refuse to give you a job if you can’t do the essential or inherent requirements of the job. For example, if you don’t have a driver’s licence or you can’t use a phone, and driving or using the phone is essential for the job, the employer can refuse to employ you. If there is something that the employer can buy that would enable you to use the phone, and you are the best person for the job, then they must buy it unless this would cause them unjustifiable hardship. But if driving or using the phone are not an essential part of the job, or that part of the job could easily be done by someone else, then they must not refuse to employ you. Instead, the employer may exchange these duties for other duties that you can do, or sort out the problem in some other way. It is OK for an employer to ask you to go for a medical to work out if you can do the essential or inherent parts of the job.
In general, you have the right to be trained and to get all other work benefits in the same way as other employees. Again, employers must provide you with any extra help or facilities you need — as long as this won’t cause them ‘unjustifiable hardship’. In general, you have the right to stay on in the job.
An employer can only dismiss you, medically retire you or make you redundant because of your disability (or your relative’s or associate’s disability) if the disability stops you doing your job properly. Employers must not make you do non-essential parts of the job, and they must provide you with any facilities or services you need to stay on in your job — as long as this won’t cause them unjustifiable hardship. Employers must do this if you, or your relative or associate, had the disability when you started the job, or if the disability began after you started the job.
In general, you have the right to not be harassed about your disability.… when you apply for a job, when you’re at work or when you leave your job.
Changing your work area and methods
At any time, you and your employer may agree to changes that will allow you to do your job better. This might mean making physical changes to your work area. It might mean changing the way you approach your job or how you are supervised. Examples of changes to a work area or the work premises • A desk that can be adjusted for height if you are using a wheelchair • Relocating filing cabinets to allow access if you have mobility issues • Increasing lighting if you have vision impairment • Provision of clear markings and colour contrasts on steps or pathways • A parking space close to the work premises if you are using a wheelchair • Building modifications to allow access to bathroom facilities if you have mobility issues. Examples of extra equipment or services that can be provided • Lifting equipment if you cannot safely lift heavy objects • Telephone typewriter (TTY) phone access if you are deaf, have hearing loss or have a speech impairment • Screen-reading software if you have vision impairment • Disability-specific equipment such as Braille equipment • Access to Auslan interpreters if you are deaf or have hearing loss.
Examples of changes to work methods
• Written instructions, task lists, labels, prompts or reminders if you have memory problems • Clear and constant daily routines if an intellectual disability affects your organisational skills • Modifying the duties involved in the job • Exchanging duties with a co-worker.
Financial help with changing the workplace
If you and your employer agree to make changes to help you do the job, you can tell your employer about the Employment Assistance Fund (EAF). Your employer may be eligible for funding under the EAF to cover the costs of modifying the workplace or purchasing special equipment. If you work for a larger company or organisation, staff in the human resources department may be able to support you in discussions about changing your work area and methods.
Changing your work tasks
Some employers will be open to changing or modifying the tasks in the workplace to best suit your skills, support needs and capabilities. Your employer may consider swapping some of your tasks with a co-worker’s duties. Swapping tasks is generally done to allow you to perform better in your job and benefit the organisation as a whole.
Examples of how tasks can be changed
• Exchanging telephone duties for filing duties if you have a hearing impairment • Swapping frequent lifting and carrying tasks for increased desk duties if you have a back injury • Trading complex problem-solving tasks with duties involving attention to detail if you have a mild intellectual disability. Your current position, or one you are applying for, may include some duties that you are unable to complete properly due to your disability. You may already be aware of some tasks you could take over from a co-worker. You may have some other ideas about how you could take on suitable duties. Speak with your employer (or prospective employer) about possibly swapping some tasks. If you don’t feel confident approaching your employer alone, ask to have someone support you during the discussions. This could be a work colleague or your provider of Disability Employment Services. If you work for a larger company or organisation, staff in the human resources department may be able to support you in discussions about changing your work tasks.
Changing your work times
Having flexible work hours and arrangements can give you a better working life and benefit the organisation you work for. Flexible work arrangements can be useful if you have periods when your disability affects your ability to work. Flexible work arrangements can allow you to attend medical appointments on a regular basis or fit in with your carer’s timetable. Discussing your work hours can also help if you need to care for children or other relatives. Flexible work arrangements help organisations attract and retain good people, reduce stress, and improve the morale and productivity of staff.
Examples of how work arrangements can be flexible
• Having extra breaks if you have pain or fatigue issues • Having flexible working hours if you have a condition that fluctuates • Being able to take paid and unpaid leave • Having a say about your roster • Sharing a job with a co-worker • Being able to work part-time • Being able to work from home
If you believe flexible work arrangements would help you in your job, think about the arrangements that might meet your needs and the needs of your employer. Ask your boss for a meeting to negotiate these arrangements. Make some notes to take with you to the meeting. Remind your employer that, if you’re allowed to work at the times when you’re not hampered by your disability, you are likely to be far more productive. Remember that the meeting is about being flexible. Your employer is likely to be responsible for an entire organisation. He or she probably has many factors to consider. Be prepared not to be granted every wish on your list. Ask your employer if there are solutions or problems that you haven’t thought about.
Working from home
Working from home is becoming more popular in Australia. Many employers now allow staff to work from home, depending on the nature of the work. It can involve you working away from the main work site on a part-time or full-time basis. This arrangement may be temporary or permanent. Working from home requires a lot of discipline. It is helpful to follow the same routine every day. Get up, shower, have breakfast and start work at the same time as you would at your workplace. While you are working from home, tell others who may be at home that you have work to do. This will allow you to work effectively and complete your daily tasks.
Who can work from home?
It is up to your employer to decide whether working from home is available for you. Some types of jobs will not enable you to work from home. Some employers may not be comfortable with the lack of supervision when you are working from home. Ask your employer if working from home suits the requirements of your job. If you have just started a new job, your employer may want you to complete a ‘qualifying period’ at the workplace before you start working from home. Benefits of working from home Working from home can allow you to work at the times of the day when you perform better. It allows you to work around family, personal and medical commitments. There may also be fewer interruptions at home. Working from home may assist with managing your disability. Allowing you to work from home may also have direct benefits for your employer. For example, it may mean that your employer does not need to purchase modified furniture, special equipment or software for the work premises.
Working from home is an extension of your workplace. Your employer could be responsible for any injuries that may occur while you work from home. If you are looking at working from home, you need to consider basic safety issues. These include:
• Ensuring that there is enough light in your work area • Having adequate ventilation • Working in an area that is not too noisy. Your employer may want to conduct a work health and safety check before you begin working from home. Working from home agreements You and your employer need to carefully plan your agreement for working from home. It’s a good idea to have this agreement in writing. It means you can be sure about your conditions of work, your responsibilities and the responsibilities of your employer. Your agreement could include: • Who will purchase and install any equipment, such as a computer, printer or office furniture • Who will pay for work-related expenses such as electricity, phone or internet connection • If or when you will be required to attend the work site • How and when you must ‘check in’ to the workplace, e.g. by phone, email or instant messaging • How you will get involved in regular team meetings or discussions with your supervisor • How you will get involved in staff training and development programs • How you will deal with clients if this is part of your job • How work health and safety and workers’ compensation factors will be assessed • Your pay and leave entitlements • How and when the arrangement will be reviewed • How and when the arrangement can be ended. Addressing these issues will help ensure that your agreement for working from home benefits you and your employer.
This information should not be taken as legal advice as it is of a general nature. The information is provided solely on the basis that readers will be responsible for making their own assessment of it. We recommend that you obtain independent legal advice from a solicitor if you wish to assess the suitability of the information contained herein.