14 November 2025

Katherine Jones PSM Secretary Attorney General’s Department Robert Garran Offices 3-5 National Circuit BARTON ACT 2600

Via: DDAReview@ag.gov.au

Dear Secretary,

RE: DISABILITY DISCRIMINATION ACT REVIEW & ISSUES PAPER

On behalf of the Australian Services Union (ASU), I thank for the opportunity to make a submission to this important review of the Disability Discrimination Act 1992 (Cth) (the Act) and to advocate for better structures to support people with disabilities both at work and across the broader society.

The ASU is one of Australia’s largest unions covering a wide range of industries vital to the Australian economy. The ASU represents community and disability workers, including disability support workers who provide care and support for people with disabilities; not-for-profit workers who advocate for the rights of people with disabilities; and workers with disabilities who work across the wide range of industries we cover.

This review must centre the principle that all workers deserve to participate in work and in public life with dignity. Employers must do more to actively prevent discrimination. The current legal framework does not provide enough protection for workers with disabilities.

The ASU makes the following key recommendations to level the field for workers with disabilities:

1. Legislate the positive duty to prevent disability discrimination;
2. Legislate the standalone positive duty to provide adjustments for workers with disabilities;
3. To make the above positive duties accessible and meaningful for workers with disabilities, resources must be increased to ensure complaints are resolved efficiently. Individuals and unions must be able to bring complaints and seek penalties against employers;
4. The current ‘comparator test’, which is used to establish whether or not the legal criteria of ‘discrimination’ has been met, must be abolished;
5. The voices of workers with disabilities must be centred. This is especially true for any changes to the definition of ‘inherent requirements’ of a role. Meaningful consultation must be embedded; and
6. Unions must have a protected role in the legal framework to advocate for workers with disabilities.

Additionally, the Supported Wage Scheme, which provides for lawful and blatant discrimination of workers with disabilities in the form of inferior wage rates, must be abolished.

Should you have any questions about this submission, please do not hesitate to contact Tiarne Crowther, ASU National Policy and Advocacy Lead via redacted.

Sincerely,

Emeline Gaske National Secretary Australian Services Union

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ASU Submission

Attorney General’s Department

Disability Discrimination Act 1992 (Cth) Review

Submitter: Emeline Gaske, National Secretary

Organisation: Australian Services Union

Address: redacted

Phone: redacted

Fax: redacted

Email: redacted

Date: 14 November 2025

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1. Introduction

The Australian Services Union (ASU) is one of Australia’s largest unions, representing approximately 135,000 members. ASU members work in a wide variety of industries and occupations in both the private, public and community sectors. ASU members work as disability support workers, sole traders, caseworkers, social educators, advocates, team leaders, carers, trainers, coordinators, managers, counsellors, CEOs and admin workers at thousands of disability providers across Australia.

ASU members also work in the local government, the social and disability workforce, aviation and not-for-profit sectors, and many of whom have disabilities. Working together in union, the ASU advocates alongisde members with disabilities to resolve workplace issues and complaints of disability discrimination.

ASU members, as well as all Australian workers deserve the right to go to work and engage in public life with ease, accessibility and be free from all forms of discrimination. Legislative protections have not kept pace with the needs of workers with disabilities, and this review is welcomed. To ensure workers with disabilities can benefit from the dignity of work, modern definitions of ‘disability’ and more proactive measures to prevent discrimination are needed. These reforms are in line with the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (the Royal Commission), which were resoundingly endorsed by the ASU and Australian unions.

2. ASU’s members in disability

2.1 Disability Support Workers

The ASU represents more than 12,000 disability support workers. Predominantly ASU disability support workers members work in NSW & ACT, Queensland, WA, NT and SA but we have further coverage across the country. Our members give us a unique insight into the experience of people with disabilities.

When asked what they love about their role, ASU disability support workers say they feel pride in their work because they help to empower people with disabilities to live independent lives:

“Connection with community and creating awareness disability inclusion”

“The growth I see in my clients. Being a part of raising wider community awareness.”

“Empowering participants, advocating for participants needs”

“Being able to help the clients live their best lives and provide them with genuine, unbiased support.”

“Supporting people with disabilities to understand their human, social, consumer and employee rights as well as facilitating connection to community groups and services”

“Making a difference in clients’ lives. Helping them lead independent, fulfilling lives. Plus I am Neurodivergent, so I love showing what Neurodivergent people can do.”

However, disability support work is a women dominated, predominantly casualised and low paid workforce. Supporting people with disabilities is an essential job, yet ASU members say they face challenges in their roles:

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“The amount of paperwork that is required to support a person. The lack of recognition in the sector.”

“Limited job security, constantly changing guidelines and lots of unbillable work for people that are funded poorly”

“Managing work/life balance where I feel like I can’t take time off. Clients can become demanding and I can’t take extended time off (more than a week) because I don’t get paid leave. It really contributes to burnout.”

“The stability/ hours are often unpredictable and shifts cancelled without adequate notice so I lose income. No opportunities for professional development or advancement unless I do this in my own time at my own cost”

“The challenging part is not having consistent support for clients as well as staff.”

When ASU Disability support workers were asked how satisfied they were with their current job, more than one-quarter (26%) were either dissatisfied or very dissatisfied. Only 12.1% were ‘very satisfied’. When asked if they’d consider leaving, 18.5% said pay, and 15.8% said conditions would be major factors contributing to them leaving the industry.

2.2 Members with disabilities

ASU members with disabilities work across the range of sectors the union covers, including disability advocacy. ASU members with disabilities work hard and take pride in their work every day. They face challenges as a result of legal standards that fail to protect them from discrimination and ensure they have equitable access to the tools they need to do their jobs. Recently, the NSW & ACT ASU branch undertook a review of their members with disabilities. Of those who had disclosed a disability, more than 1 in 10 (12.5%) had sought help with adjustment requests or discrimination complaints.

Many of our members must obtain qualifications before commencing work in their field. For example, community and disability workers and local government employed early childhood educators are required to hold a Diploma or higher qualification to commence work in their field. Disability discrimination and corresponding barriers in the education system make it more difficult for workers with disabilities to obtain the required qualifications then enter into these fields, which are integral to the community yet have very high turnover rates. It is vital disability discrimination is addressed in the education system to ensure long-term sustainability of the workforce.

ASU members with disabilities bring an additional value to their work. They bring their lived experiences, unique points of view and connections within their communities to the work we do. They must have structures and systems in place at work to ensure they’re treated with respect and dignity.

3. ASU members and all workers deserve to participate in work and public life with dignity

All workers should have the right to a dignified work life regardless of whether they have a disability. Yet disability discrimination remains the most frequent form of complaint received by the Human Rights Commission, and of disability discrimination complaints, nearly 1 in 3 pertain to employment.[1]

[1] https://humanrights.gov.au/education/stats-facts/statistics-about-disability-rights-0

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Data produced by the Australian Institute of Health and Welfare demonstrates that workers with disabilities face barriers to fully participate in work:[2]

• Only 53% of workers with disabilities participate in the labour force, which is significantly lower than the rate for workers without disabilities (84%),
• Similarly, less than half of disabled workers aged 15-64 are employed (48%), compared to 80% of the workforce without disabilities,
• Workers with disabilities are more likely to be underemployed; with 10% of workers with disabilities being underemployed compared to 6.9% of workers without disabilities,
• Part-time employment is more common, given 41% of workers with disabilities were employed part-time compared to 32% of the general workforce,
• Workers with disabilities are more likely to be long term unemployed, as 22% have been unemployed for over a year; 8% higher than those without disabilities, and
• Almost all (93%) of unemployed workers with disabilities find it difficult to find work.

Discrimination of workers with disabilities should also be viewed from an intersectional lens. Other attributes, such as gender, race, age, or being LGBTIQA+, in addition to disability can impact rates and severity of discrimination. For example, while 1 in 10 people with a disability reported being subjected to discrimination, almost 1 in 5 (17.6%) young people with a disability reported experiencing discrimination.[3] Similarly, more than 1 in 4 (27.7%) LGBTIQA+ people with a disability reported facing discrimination.[4] Additionally, those with profound or severe limitations were more frequently subject to discrimination (19%) than those with mild or moderation limitations (6.8%).[5]

While it is important to shine a light on the specific nature of the discrimination workers with disabilities face, it is crucial to note that all forms of hatred spring from ‘othering’ individuals who deviate from accepted social norms. Intersectionality is critical to understanding and achieving workplaces free from discrimination. Legal and social institutions as well as the workplace must play an important role in overcoming harmful attitudes.

4. Employers must do more to proactively prevent discrimination of workers with disabilities

In the workplace, harmful attitudes can manifest in the form of employers refusing to recognise the skills, knowledge, viewpoints and experience workers with disabilities bring. It can also mean employers refusing to provide safe systems of work where workers with disability are subject to discrimination by co-workers and/or customers or clients. This results in:

• Lower employment rates or higher underemployment rates for workers with disabilities, for example, because employers fail to hire workers with disabilities,
• Structural inequality and inaccessibility of the workplace, for example employers failing to provide adjustments to enable workers with disabilities to do their work, and/or
• A lack of progression in the careers of workers with disabilities, because employers’ failure to provide adjustments or recognise skills and experiences is as a barrier to ongoing development.

[2] Australian Institute of Health and Welfare, People with disability in Australia 2022: in brief (2022), accessed: https://www.aihw.gov.au/reports/disability/people-with-disability-in-australia-2022-in-brief/contents/employment

[3] People with Disabilities’ analysis of Australian Bureau of Statistics Report ‘2022 Survey of Disability, Ageing and Carers’: Statistics on discrimination, abuse and neglect, and social and community participation for people with disability, accessed: https://pwd.org.au/australian-bureau-of-statistics-survey-of-disability-ageing-and-carers-2022/

[4] Ibid

[5] Ibid

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In the alternative, workplaces where diversity is normalised is powerful. In these workplaces, the of skills, experiences, expertise and points of view of workers with disabilities are respected and utilised. Workplaces stand to gain so much by embracing the full employment of workers with disabilities.

ASU’s disability support workers take pride in providing the highest quality support and care to people with disabilities. Their quality work is being undermined by employers’ failure to recognise the contributions of workers with disabilities and a lack of fulsome legal protections against disability discrimination.

ASU members with disabilities were asked about the most challenging part of their role. They outlined that the difficulties they faced in finding employers who understood their needs:

“Finding employers to work with people with a disability”

“Working with employers to educate them about disability”

4.1 Introducing a positive duty to prevent disability discrimination

For these reasons, the ASU endorses the recommendation of the Royal Commission that a standalone positive duty be implemented to prevent disability discrimination.

Recommendation 1: Legislate the recommendation of the Royal Commission to introduce a positive duty to prevent disability discrimination. This duty must extend to employers as duty holders.

The implementation of the employer’s positive duty to prevent sexual harassment in the Sex Discrimination Act 1984 (Cth) (the SDA), and other duties in jurisdictions across Australia, such as Victoria’s duty to prevent sexual harassment in the Equal Opportunity Act 2006 (Vic) (the Victorian EOA) demonstrate that key to the success of positive duty is resourcing and enforcement mechanisms.

4.1.1 Wait times and resourcing

After amending the SDA to introduce the positive duty to prevent sexual harassment in December 2022, there was a significant spike in the wait time for complaints to be heard. This is on the back of pre-existing wait times of around 6 months before the Human Rights Commission.[6]

A new positive duty to prevent disability discrimination should both be enforceable for major cases of workplace discrimination as well as for more ‘minor’ everyday issues. It should practically increase the accessibility and fairness of work. Early and quick resolution of disputes leads to more harmonious workplaces. However, if these disputes cannot be heard quickly and efficiently, issues that could be resolved can snowball into larger more significant legal cases warranting applications for more extensive damages.

The Fair Work Commission is resourced to hear workplace matters quickly and efficiently. It usually hears matters within approximately 6 weeks of application. The Fair Work Commission also has industrial expertise and a familiarity with the role of unions, further enabling the quick resolution of workplace disputes. These issues should be considered for workplace disability discrimination complaints, and resourcing must be increased to enable quick resolution of workplace disability discrimination matters.

[6] Senate Select Committee on Legal and Constitutional Affairs, Inquiry into Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, ACTU Question On Notice Response - received 26 October 2022, accessed: https://www.aph.gov.au/DocumentsStore.ashx?id=c34aa54b-0379-49ec-b965-30f7ab1ad244#:~:text=The%20ACTU%20understands%20that%20there,provisions%20full%20effect%20and%20meaning.

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Recommendation 2: Resources must be adequately allocated to ensure the fast and efficient hearing of complaints that enable resolution of issues before they cause more harm, and become more substantial legal matters.

4.1.2 Enforcement mechanism

An enforcement mechanism, that can be widely used and actioned both by individual workers and by workers collectively and their unions is key to any meaningful implementation of a positive duty to prevent discrimination against workers with disabilities.

The Australian Human Right Commission’s Speaking from Experience Report, recognised that greater accountability for duty holders leads to better enforcement of the positive duty.[7] Unions called for the introduction of civil penalties and individual applications for breach of the positive duty for sexual harassment when it was legislated. However, these proposals were not incorporated. Now, the Human Rights Commission has recommended that a civil penalty regime be introduced to strengthen the new national positive duty to prevent sexual harassment.[8]

Case study: VEOHRC Investigation into Bakers Delight, 2022[9]

Under the Victorian EOA, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) has powers to investigate an employer’s failure in their positive duty to eliminate sexual harassment. VEOHRC commenced such an investigation in 2022 into Bakers Delight and its franchises after having received numerous reports from young workers of institutionalised workplace sexual harassment at the hands of their co-workers, managers, and customers.

The Victorian EOA does not provide for an enforcement mechanism accessible to individual workers as part of duty to eliminate sexual harassment. Instead, it only provides for broad ranging powers of investigation to VEOHRC. There is no avenue for resolution for individual or groups of workers who make a complaint of breach of the duty to prevent sexual harassment. Despite the EOA having been in force since 2006, the Bakers Delight investigation was the first time VEORHC had exercised its powers under the duty.

Unions involved in the investigation report that VEOHRC failed to consult the workers who lodged complaints. Workers were not provided with an opportunity to contribute to the proposed outcomes or next steps of the process. As a result of the investigation, the head franchisor of Bakers Delight agreed to update policies and procedures and implement training programs. There was no resolution for the individual worker complainants. The success of this action was limited. Unions question whether these policy changes have resulted in widespread institutionalised reform about the attitudes and drivers of sexual harassment at work across Bakers Delight franchises. It is not clear whether the workers who made the complaints felt safer at work because they had no avenue to participate in the VEOHRC investigation or provide feedback afterwards.

Recommendation 3: In legislating the positive duty, the right for individual workers as well as groups of workers and their unions to bring a complaint must be enshrined. In bringing complaints, workers must be able to seek pecuniary penalties against employers for failing to uphold duty obligations.

[7] Australian Human Rights Commission, Speaking from Experience: What needs to change to address workplace sexual harassment (June 2025), p 68, accessed: https://humanrights.gov.au/sites/default/files/Speaking%20from%20Experience%20Report_0_0.pdf

[8] Recommendation 11 https://humanrights.gov.au/sites/default/files/Speaking%20from%20Experience%20Report_0_0.pdf

[9] A Thompson, 5 August 2022, Syndey Morning Herald, ‘Bakers Delight may serve up sexual harassment warnings to customers’, accessed: https://www.smh.com.au/politics/federal/bakers-delight-may-serve-up-sexual-harassment-warnings-to-customers-20220804-p5b75w.html

4.2 Ensuring workers with disabilities can access adjustments at work

The current ‘reasonable adjustments’ framework is unworkable. It is not clear to workers or their employers what is reasonable and what is not. It’s not clear to workers how they should action a request for adjustments, or what their protections are in the course of the request. The proposal to provide clarity to employers about their obligations, and the corresponding rights of workers with disabilities is welcomed.

The ASU endorses the Royal Commission’s recommendation to reform the definition of ‘indirect disability’ by separating out the obligation to provide adjustments for workers with disabilities, and to remove the word ‘reasonable’ from the adjustments framework.

As with the positive duty to prevent discrimination, the positive duty to provide adjustments must have an enforcement mechanism accessible to individual and groups of workers, and their unions, as well as be adequately resourced to provide timely resolution.

Certain adjustments in the workplace can completely shift the accessibility of work for particular workers. ASU members have recently been running a campaign to expand rights to work from home as part of a review into the Clerks Award 2020. ASU members with disabilities, especially neurodivergent members, reported that working from home becoming more commonplace has enabled them to hold down a job for the first time in years.

Case Study: Riley*, ASU member, Victoria Riley is autistic and has had employment issues throughout their working life: mostly related to attendance. Riley is trained in marketing and promotions. Riley spent years of their working life unemployed because they weren’t able to hold down a full-time job.

However, during the COVID-19 pandemic, they were able to access working from home instead of attending the office, which was open plan, very bright with lots of noise and conversation and laughter. Riley found the workplace to be a trigger for autistic overstimulation. Being able to work from home has allowed Riley to maintain a full-time job without any attendance issues. Working from home allowed Riley to realise they were never incapable or unproductive, but just needed a small adjustment to their working life to be able to fully contribute. It gave them a confidence boost. They found a small adjustment opened doors for them.

Unfortunately, Riley had to leave their most recent job because their employer changed the work from home policy. Riley knew they would not be able to work in the open plan, loud and bright office full time and their employer was not willing to be flexible on work from home.

Case Study: Claire*, ASU member, New South Wales Claire works in customer service, part-time in a contact centre. She applied for her current job because it’s primarily work from home and she finds the arrangement beneficial. Working 10 hour shifts in an office is draining because Claire has ADHD. The office is open plan and small. She has to share a small space of about 10 square metres with 10 co-workers. She finds working in the office overwhelming. The constant stimulation of being around people who are talking loudly is distracting and draining and she cannot get her work done to the standard she would like to.

Claire said she enjoys contact centre work because it’s the type of work that suits her. With her ADHD, she needs work that has some urgency; balanced with consistent tasks. Contact centre work suits her because she’s unlikely to become overstimulated. Working from home helps Claire with managing overstimulation because she can sit somewhere quiet and decompress between calls.

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Case Study: Amanda*, ASU member, Australian Capital Territory Amanda works as a Senior Legal Assistant part-time, four days per week. Work from home is very common in her workplace, which has a work from home policy. Amanda suffers from chronic fatigue. Working from home benefits her because she does not need to commute to the office. It gives her a chance to rest her body, and she find that she’s more productive at home because she has less distractions. Amanda also has ADHD/autism, so background noise can be distracting. She finds it easier to focus working from home.

Amanda expends a lot less energy working from home than when she has to travel into the office. It also takes a lot of effort for her to be around other people due to her autism/ADHD. She says she can save her energy by working from home because she doesn’t have to expend that energy just being around other people.

Amanda also benefited from working from home during her second pregnancy. During her first pregnancy, she suffered from pregnancy related conditions of pelvic instability and sacroiliac issues. She called in sick approximately once per week because she couldn’t manage the pain on top of travel and a full day in the office. During her second pregnancy, where she had the same issues, she rarely took any sick days because she could better manage the conditions working from home.

Amanda feels strongly about work from home. It enables her to work consistently and reliably regardless of her disabilities.

*Names altered to maintain privacy of ASU members.

Working from home is an example of one type of adjustment and the above case studies demonstrate that it can make a huge difference to workers’ lives, especially neurodivergent workers. A range of adjustments must be available to suit all individual workers with disabilities and their specific needs.

Recommendation 4: Legislate the recommendation of the Royal Commission to introduce a positive duty to provide adjustments for workers with disabilities. This duty must extend to employers as duty holders and there must be adequate resourcing and an enforcement mechanism to ensure the duty is meaningful.

Resources must be available to organisations to ensure the adjustments requested by workers with disabilities, such as closed captioning technology for deaf workers or voice reading technology for blind workers, is structurally available. Many ASU members work in community or not-for-profit organisations where short term and inadequate funding risks employment rights and conditions. Additional employment related costs in these types of organisations can be a substantial strain. An unintended consequence of a new positive duty to provide adjustments may be that a lack of resourcing to provide adjustments is used as a reason not to employ or continue to employ workers with disabilities. This would further exacerbate the issue of unemployment and underemployment amongst workers with disabilities.

The Employment Assistance Fund (EAF) currently provides funding for employers who can apply for assistance under the fund to provide work enabling technologies. The EAF should be monitored to ensure that it can continue to fund adjustments provided in a timely and appropriate manner to workers with disabilities. The EAF also relies on employers applying for funding, with little or no right for workers to make requests. This should be reformed to enable workers with disabilities to have agency over the form and nature of applications to the EAF.

Recommendation 5: Ensure resourcing is available to the Employment Assistance Fund so enabling technologies can be provided quickly to workers with disabilities. Individual workers, as well as employers must be able to access funds.

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To make the adjustments framework more accessible for workers, there must be an obligation on employers to document requests. Legislation should reflect that a request may be made in a number of ways and a request does not necessarily need to reflect the words enshrined in legislation. Rights to a fair and reasonable process for workers with disabilities making the adjustments request, with meaningful consultation must be legislated. There should be a bias towards providing the adjustment requested by workers with disabilities.

The Royal Commission recommends that in implementing this new positive duty, the ‘defence’ of ‘unjustifiable hardship’ should have two additional elements included. The first being consultation with workers with disabilities, and the second being whether any alternative options are available to remove hardship.

The ASU endorses these principles. However, the introduction of the ‘alternative options’ element must still give rise to far-reaching obligations on employers with a bias towards providing the adjustment requested. Here, adjustment rights and corresponding obligations could take inspiration from work health and safety (WHS) laws. WHS provides that employers carrying out their duties regarding safety risks in the workplace must adhere to a hierarchy of control to reduce workplace hazards. The hierarchy provides that employers must eliminate hazards as much as reasonably practicable. If not practicable, other controls are assessed in order via the hierarchy, with providing personal protective equipment (PPE) the least effective control and at the bottom of the hierarchy. In carrying out WHS obligations and implementing the hierarchy, employers must consult with their workforce.[10]

To navigate the complexity of providing adjustments at work, while also enshrining the agency of workers with disabilities and providing the adjustment they request, alternative options via the adjustment duty should be guided by a hierarchy of implementation. Providing the requested adjustment should be at the top of the hierarchy. This would provide a clear framework for workers with disabilities to negotiate adjustments. Determining the further elements of such a hierarchy should be co-created and co-designed with workers with disabilities.

Recommendation 6: The new elements of the ‘unjustifiable hardship’ defence must:

a. Ensure they do not operate to inadvertently widen the existing defence;

b. Account for employer obligations to undertake a reasonable and fair process;

c. Embed meaningful consultation with workers with disabilities; and

d. Follow a hierarchy when it comes to considering alternative options when implementing the adjustment.

4.2.1 Broad application of the adjustments positive duty

The Royal Commission recommended that the scope of an adjustments positive duty should be wide reaching and not confined to the pre-existing settings of the legislation. The ASU endorses this recommendation in principle. It must extend into ensuring workers with disability can access quality housing, and quality, reliable and accessible transport. Without these basic needs being met, many workers with disabilities face barriers in obtaining and remaining in work.

However further consideration may be warranted about the application of a positive duty in private settings. For example, ASU members who work in disability support work are often tasked with visiting people with disabilities in their homes and providing them with support and care. Disability support workers are predominantly women, who are casualised and low-paid. Members join together in union to increase their

[10] WorkSafe Victoria, ‘The Hierarchy of Control’, accessed: https://www.worksafe.vic.gov.au/hierarchy-control

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bargaining power. ASU disability support worker members report the pressure they face from employers to get through tasks quickly. Employer decisions about resourcing mean that workers face barriers to provide the highest standard of care. In these instances, the burden for complying with the positive duty must not shift to the individual worker as a result of a broad application. Avenues for complaints for a wide ranging duty must in the first instance consider the broader system that might contribute to any breaches of the duty.

Recommendation 7: Work with the ASU to implement the broad application of a positive duty to provide adjustments to ensure responsibilities are not unfairly shifted onto disability support workers.

5. Levelling the field for workers with disabilities

In addition to the two new positive duties, there are a number of key amendments that should be legislated to ensure workers with disabilities can access dignity of work, and have meaningful, secure and well-paid jobs, as well as timely justice for discrimination where it occurs.

5.1 The Comparator Test

Currently, to establish indirect discrimination workers with disabilities must argue that the alleged discriminatory conduct would not have occurred to a person without a disability. This test is unworkable and creates an additional hurdle not present in other discrimination legislation; that is that the action was discriminatory and, additionally that it would not have happened to a different person. This an unfair standard for people with disabilities and is simply wrong. The ASU endorses the Royal Commission’s proposal to remove the comparator test.

Recommendation 8: Legislate to implement the Royal Commission’s recommendation to abolish the comparator test.

In establishing an alternative definition, the ASU defers to the knowledge of the disability justice sector. The Department must work with the sector to find a new workable definition. However, the Discussion Paper suggests that a causation test could seek inspiration from the general protections framework in the Fair Work Act (Cth) 2009. This test is too subjective and has been interpreted by the Commission and the courts to give weight only to the factors narrowly defined as those the decision maker says they considered.[11] Unions have long called for some more objective or contextual elements to be incorporated into the general protections causation test. In establishing a causation test for disability discrimination, the unworkable level of subjectivity present in the Fair Work Act’s general protections framework should not be adopted.

Recommendation 9: In establishing an alternative definition, the expertise of the disability justice sector must be fully utilised. However, the General Protections causation test should not be used as a model.

5.2 Inherent Requirements

The ASU has seen employers use ‘inherent requirements’ of the role as an excuse to not hire workers with disabilities, halt their career progression, or terminate their employment. The modernisation of the term is warmly welcomed and should be viewed as a mechanism to increase the employment rates of workers with disabilities.

[11] See for example, Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

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Inherent requirements amendments must recognise the varied and diverse forms of disability, including physical and mental disabilities, as well as the depth of variation amongst types of disabilities. Different forms of disabilities enable creative and unique ways for work to be undertaken, and this must be recognised.

There must be scope to go to the practical, actual duties needed of a worker, with a view to the outcome sought to be achieved, not just the form of the task. For example, neuro-divergent ASU members working in complex situation such as in the community sector might not model typical emotional characteristics at work, but they are well trained and capable of achieving outcomes.

There must be enough flexibility in the definition to ensure workers are not locked out of certain roles due to their disabilities. Key to this is ensuring the voices of workers with disabilities are embedded at every step. Consultation rights about inherent requirements must be enshrined. Legislation must also recognise the crucial role of unions in implementing consultation and providing meaningful workplace supports in these discussions.

Recommendation 10: Workers with disabilities must have a right to advocate on and be consulted on the ‘inherent requirements’ of their role. Unions must have a legislated right to be part of this process.

5.3 Collective applications

A common thread amongst all the experiences of ASU members with disabilities is the power imbalance present when advocating for their rights at work. Workers standing together are able to achieve better outcomes. Unionised workplaces are safer,[12] and better paid than non-unionised workplaces because the collective approach allows for power imbalances to be overcome.[13]

Similarly, complaints heard by individual workers in individualised legal proceedings are less likely to result in systemic issues being addressed. For individuals before forums like the Human Rights Commission, where negotiations are commonplace, settlements are unlikely to be as significant for individual workers compared to those who can negotiate collectively. For this reason, representative action must be able to be taken by workers enforcing their rights under the Act. Unions must have a right to form part of these representative actions and must have the right to initiate proceedings on behalf of members.

5.4 Abolish the discriminatory Supported Wage System

While not within the scope of this review, it is not possible for the ASU to consider disability discrimination in the workplace without noting the legally enshrined discrimination allowed by the Supported Wage System (SWS). Under the SWS employers are able to determine how ‘productive’ a worker with a disability is by assessing their capacity. In practice this leads to wages that are not based on outputs or tasks of the job – a principle of equal pay for equal work that unions have long fought for. Instead, it means that a worker who is assessed as having, for example, 60% of the capacity of a worker without a disability, can be paid 60% of the Award wage, regardless of their work or outputs.

[12] Australian Unions, ‘The verdict is in: safe workplaces are union workplaces’, 2021, accessed: https://www.australianunions.org.au/2021/11/17/the-verdict-is-in-safe-workplaces-are-union-workplaces/

[13] Australian Unions, ‘Union members earn more. Here’s why.’, accessed: https://www.australianunions.org.au/union-members-earn-more-heres-why/

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SWS provisions in Awards outline that workers with disabilities employed under the scheme can be paid as little as $109 per week. The SWS also stipulates that workers can legally be paid as little as $3.12.[14]

The ASU condemns the SWS as a form of legalised discrimination within Australia’s wages system. It is wrong and workers with disabilities deserve better. Workers with disabilities could not meet their living costs on these extremely low wages.

Minimum wage provisions in Australia have long been determined by everyday household and living costs and underpinned by the principle of equality of pay for the same or similar work. Australians would justifiably be outraged if women workers were assessed as having ‘less capacity’ and this led to a calculation to reduce their hourly wage. The same standard must be applied for workers with disabilities. The SWS must be abolished to uphold the principle of equal work, equal wage as well as liveable wages.

Recommendation 11: The Government must amend the Fair Work Act (Cth) 2009 to abolish the Supported Wage System across all Awards and within all workplaces.

Recommendation 12: section 47 of the Disability Discrimination Act must be amended to remove the exemption which allows for the operation of the Supported Wage System.

6. Conclusion

ASU disability support workers take pride in their work. As do ASU members who have disabilities, working across a broad range of sectors and industries. The Disability Discrimination Act is not fit-for-purpose in ensuring workers with disabilities have a dignified, secure and meaningful work-life. Rates of discrimination, unemployment and under-employment are far too high. The ASU welcomes the proposals contained in the Discussion Paper and the consideration of reforms recommended by the Royal Commission.

The recommendation to introduce two new positive duties; the duty to prevent discrimination and the duty to provide adjustments, must be legislated. To ensure they’re practical and workable, resourcing must be increased and there must be a corresponding penalty regime to allow for complaints to be brought by individual or groups of workers and their unions for failing to comply. Adjustment obligations should also have clear consultation rights for workers with disabilities and their unions, as well as clear pathways to resolve adjustment disputes.

The legal definition of disability discrimination as well as inherent requirements must centre the expertise of advocates with lived experience and those with disabilities. Embedded consultation is key to ensuring inherent requirements speak to the practical outcomes necessary of certain roles. Unions must play a part in ensuring workers with disabilities can access new rights established in the review of the Act, and collective representation action must also be enshrined as part of any legislative amendments.

Lastly, the Support Wage System allows for the legislated discrimination of workers with disabilities. Until it is abolished, workers with disabilities will never be able to be truly equal within the workforce.

[14] Fair Work Ombudsman Guidance, ‘Employees with disability pay rates’, accessed: https://www.fairwork.gov.au/pay-and-wages/minimum-wages/employees-with-disability-pay-rates

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7. Recommendations

Recommendation 1: Legislate the recommendation of the Royal Commission to introduce a positive duty to prevent disability discrimination. This duty must extend to employers as duty holders.

Recommendation 2: Resources must be adequately allocated to ensure the fast and efficient hearing of complaints that enable resolution of issues before they cause more harm, and become more substantial legal matters.

Recommendation 3: In legislating the positive duty, the right for individual workers as well as groups of workers and their unions to bring a complaint must be enshrined. In bringing complaints, workers must be able to seek pecuniary penalties against employers for failing to uphold duty obligations.

Recommendation 4: Legislate the recommendation of the Royal Commission to introduce a positive duty to provide adjustments for workers with disabilities. This duty must extend to employers as duty holders and there must be adequate resourcing and an enforcement mechanism to ensure the duty is meaningful.

Recommendation 5: Ensure resourcing is available to the Employment Assistance Fund so enabling technologies can be provided quickly to workers with disabilities. Individual workers, as well as employers must be able to access funds.

Recommendation 6: The new elements of the ‘unjustifiable hardship’ defence must:

a. Ensure they do not operate to inadvertently widen the existing defence;

b. Account for employer obligations to undertake a reasonable and fair process;

c. Embed meaningful consultation with workers with disabilities; and

d. Follow a hierarchy when it comes to considering alternative options when implementing the adjustment.

Recommendation 7: Work with the ASU to implement the broad application of a positive duty to provide adjustments to ensure responsibilities are not unfairly shifted onto disability support workers.

Recommendation 8: Legislate to implement the Royal Commission’s recommendation to abolish the comparator test.

Recommendation 9: In establishing an alternative definition, the expertise of the disability justice sector must be fully utilised. However, the General Protections causation test should not be used as a model.

Recommendation 10: Workers with disabilities must have a right to advocate on and be consulted on the ‘inherent requirements’ of their role. Unions must have a legislated right to be part of this process.

Recommendation 11: The Government must amend the Fair Work Act (Cth) 2009 to abolish the Supported Wage System across all Awards and within all workplaces.

Recommendation 12: section 47 of the Disability Discrimination Act must be amended to remove the exemption which allows for the operation of the Supported Wage System.

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