The definition of disability we use is ‘any limitation, restriction or impairment which restricts everyday activities and has lasted or is likely to last for at least six months’.
Many people who are injured in the workplace do not regard themselves as having a disability. But the reality is, if you take longer than six months to recover from injury, you have an acquired disability, regardless of whether you are claiming workers compensation or not.
For the purposes of a workers compensation claim though, the definition of disability is linked to a lump sum payout for permanent impairment. This presents a problem. There’s a huge industry around ‘rehabilitation’ after a workplace injury. Thousands and thousands are spent on returning injured employees to work, with the objective of reinstating pre-injury capability and duties, and reducing the cost of an individual’s medical bills and income support. The objective of ‘rehabilitation’ is to return an individual to permanent health, and eventually remove the income support and liability for medical bills. And that can take years.
Insurance companies operate on the basis of income – they don’t make a profit from premiums if people continue to make long term claims for income support and medical bills. The objective is to return a worker to pre-injury status as fast as possible. Initially, at least, this feels like support.
However, in a claim that goes past the six month point – as many do – there is much more pressure on the individual to meet the insurers objectives – not always suiting their individual needs.
An injured worker, under the medical model of disability – as we’ve mentioned in blogs in the past - is considered a ‘success’ in their rehabilitation program , if returned to work without any reasonable adjustment or flexible working conditions. The employee must ‘heal’ entirely.
That’s not always going to happen. For many people, a longer period of time is required – which is not something insurance companies prefer, as it means forking out for medical treatment longer and incurring more and more costs over time.
When is a workplace injury a disability?
Here’s a radical thought. If we consider a person who is injured on the job as a person with a disability after six months – under the Australian Bureau of Statistics definition – then the way we treat that employee in the workplace must change.
Rather than pressure on the employee to perform the same duties with the same conditions of service as pre-injury, employers and insurers can accept that post six months, an injured worker should have permanent access to the conditions and reasonable adjustments on the job that a person with a disability may request in order to perform equally with their colleagues and compared to their pre-injury performance.
If rehabilitation providers and employers accept that if an injured employee is not returned to pre-injury duties within six months, a process should be put in place to treat the injury as a disability for the purposes of reasonable adjustment, access to flexible working conditions and job re-design, then the pressure to ‘heal’ the injury is reduced, and the stress around losing accessible working conditions is eased – ensuring that stress about future employment is minimised, and ensuring that employers must consider flexible working conditions as a permanent measure.
The pressure to ‘heal’
In any workers’ compensation case, pressure to return to pre-injury duties with pre-injury conditions is a very heavy burden on an injured employee, and a person with an injury can feel ‘blamed’ for not ‘healing’ their injury sooner. The psychological stress associated with this point in the process is extreme, and non-compensable – but if the psychological pressure is reduced, better outcomes for injured workers are more assured.
Another unacknowledged problem, particularly in the case of our Australian Defence Force personnel injured while serving is the time it takes for an initial claim to be processed – during which time a person may be out of work and relying on Centrelink for an income while trying to pay for medical bills and support a family. It can take months for a claim to be processed, and during that time, support is not forthcoming.
By putting in place an interim support system, particularly for our ex-ADF personnel, which does not admit liability for insurance purposes but offers support to recover and return to a work environment with flexible working conditions, such as home based work, results only work environments and adaptive technology, and ensuring permanent access to these conditions, injured workers at the six month point will be reassured that they are supported to heal, adapt, and progress their lives.
Why aren’t we doing this already?
The simple fact in compensation and injuries on the job – particularly mental health conditions or in Department of Veterans Affairs claims – is that if a person is treated as having a disability after six months, there is a legal precedent to pay compensation for permanent impairment.
Until the legal precedent for permanent impairment is changed to allow the treatment of workers injured on the job as having a disability after the six month point, employers must treat the employee as having a work related injury under the compensation system, and the focus is on returning a worker to pre-injury duties or capability, no matter the psychological stress this causes.
Insurers are desperate to minimise the cost of claims. Workers’ are desperate for support and medical bill payment and reimbursement for the cost of time off work. The system has pressure on it that is purely financial, and for that reason, most cases are approached, eventually, as a cost per benefit analysis. The model is driven by money, not care or empathy. Part of the pain of any workers’ compensation process is the cold reality of being a ‘cost’ or a ‘burden’, and facing hostile medico legal practitioners who it can seem, are only interested in accepting a consultant’s fee for reporting to an insurer that you are a malingerer.
For anyone who has had to claim workers’ compensation for an injury, or apply for support from the Department of Veteran’s Affairs, it can be a harrowing and highly personalised targeted process which does not acknowledge the individual, only the cost of the potential medical bills and income support.
Separate the medico-legal process and compensation part of the claim from the support to return to a work environment or income support, and there is potential to reduce the stress on the injured worker, whether civilian or military, and allow them the freedom to build confidence, find suitable work and be assessed on the basis of their reasonable adjustment and accessibility needs on a permanent basis as a person with a disability and the stress is reduced leading to better injury outcomes and better support on a personal level, with conditions of service for any employer that enable them to work comfortably and safely at pre-injury levels, but with altered work conditions which include all possible reasonable adjustments and conditions.
Flexible working and results only work environments
Flexible working conditions – including home based work, part time work, a gradual return to full time hours – and a results only work environment can be enormously helpful to a person with an acquired disability. For example, a person who has post-traumatic stress may benefit from home based work and a results only work environment, allowing them to work at their own pace to achieve work projects and targets at a time of day which suits them. This may not be a nine to five proposition, if that person has insomnia as a symptom, they may find themselves working at 3am simply because their Circadian Rhythm is reversed, and asleep at 3pm. The performance is better, as cognition is actually better at 3am rather than 3pm, and better work results will be achieved.
Our recent submissions, for example, into the ACT Government Insecure Work Inquiry and the ACT Government Inquiry into Disability Employment, were written at these times over a week or so including weekends, by our Media Liaison and Communications Manager who has flexible working conditions and a results only work environment.
A results only work environment encourages self pacing and delivery of work within a set time, no matter what time of day or night, or what day of the week the work is done.
If all injured workers are reclassified as people with an acquired disability after the six month point, and given access to flexible work and results only work environments, and if they are properly supported to return to work from the point at which they lodge a workers compensation claim or a DVA claim, I suspect the outcomes would improve for the insurers, and the individual claimant.
There have been times in my life where all I’ve needed is a foot in the door and a chance to prove myself. One such opportunity presented itself as a short term contract with a public service department when I was 26, and once I was able to show my worth on the job during that three month contract, I was able to demonstrate the skills and on-the-job knowledge I had learned in an interview and land the job permanently. From an entry level clerical position, I was promoted to an executive level over time.
If I hadn’t had the opportunity of a short term contract, I may not have taken this path at all. And the same goes for many others who join the public sector, or any other industry, as labour hire or short term contractors. The fact is, it’s the foot in the door we might need to prove to people that we are just as capable as anyone else.
Labour hire and short term contracts are labelled ‘insecure work’, and while those roles advertised as such provide businesses and organisations with the seasonal flexibility they might need, and provide people at a disadvantage with much needed income and experience, it is not well liked by the traditional industrial relations system. There have been numerous inquiries into the issue of insecure work over the last few years by nearly all states and territories in Australia, because there are companies which pop up on social media sites who exploit vulnerable workers.
Labour hire and short term contracts are also disliked by the traditional industrial relations system, as workers are often paid a loading on their wage rather than given leave, and entitlements are under the labour hire company’s applicable award rather than the employers enterprise agreement.
In the absence of proper and fair employment opportunities for people in our inclusion groups, ‘insecure’ work can be a desperately needed ‘in’.
Insecure work is advantageous to some people, for different reasons. For our inclusion groups, it offers firstly an opportunity to gain experience in an industry, while earning an income, and casual work (such as contracting for 3, 6 or 12 months to either an employer or under a labour hire arrangement) can also provide the opportunity to gain references, experience, and build a resume – leading to a better long term employment outcome.
Part time work suits many people with a disability who are managing a condition, carers who are balancing their caring responsibilities with working, and senior Australians who may want to work part-time as a lead in to retirement. Often, in our experience, a worker with a disability who has the opportunity to work in a non-ongoing role will not only receive the benefit of the experience and references, but will have better confidence in managing their condition while working, and better confidence in themselves and their skills and abilities.
More importantly, they will also change attitudes in the workplace, an often overlooked benefit to employing a person with a disability, opening up opportunities not only for themselves but for other people with a disability by challenging the stereotypes that exist around disability and working.
And a short term temporary role can also be a great interim measure for those leaving the Australian Defence Force, or their supporting family, who have accompanied that former Defence Force member on posting or had a forced break in work caring for children and holding down the home front while they were on active service.
Frankly, in the absence of targeted employment programs, there’s no equality in opportunity.
Employers, including government and private sector large enterprises, haven’t seen the light yet. In the absence of employment programs – such as suitably paid internships and traineeship programs – there’s no other way some people can access work opportunities.
Employers spend up on recruiting university graduates, and their first year on the job – rotating their work through different areas of their business to train them in every aspect of that company or organisation’s operations. Having invested in their training and development, and ensured their corporate knowledge is brought up to speed incredibly quickly, they have a valuable and knowledgeable worker who can be fast tracked into permanent work.
When it comes to people with a disability, ex-ADF, carers and seniors, there’s not a lot of investment going on.
Any system can fail
The enquiries being undertaken are a valuable insight into the way in which people who are vulnerable are being exploited, and they are, by disreputable companies which pop up one day on with an advertisement on social media and disappear the next. Particular industries with seasonal work are affected, such as fruit picking and retail around Christmas time.
It might surprise you to know that we comply with over 100 Acts and their associated Regulations around Australia as a recruitment company.
It becomes obvious that an unscrupulous operator in the industry can do whatever they like, because they don’t care about complying with the law. Exploiting vulnerable workers is simply too easy because the compliance is too complicated, and because people are desperate to work.
Enabled Employment’s position on insecure work
We’re arguing that if employers and government are going to cut out temporary and labour hire work, without substituting a program to hire veterans, their families, people with a disability, seniors and carers, then they’re cutting out the ‘foot in the door’ that people might need to start their career, or continue it after moving or caring for a person, or managing a condition, illness or disability.
There’s enough compliance measures built in to those 100+ Acts and Regulations around Australia to ensure there shouldn’t be disreputable and unethical operators in the labour hire market, IF the compliance is undertaken diligently by all parties. It is overly complex, though, and could be simplified to ensure better compliance.
Make sure you’re safe online
If you are considering inquiring about a job advertisement online, particularly on social media, always check the company advertising the job has a website, an Australian Business Number or Company Number, and a contact phone number. Enquire as to which Award the job is under, and what the rates of pay are – and the entitlements.
If you believe you have been the victim of a scam operator, contact the Fair Work Commission in your state or territory.
There’s a real trend towards using psychometric testing as part of a recruitment process these days. Many private companies thrive on the invention and distribution of the perfect psychometric test which is supposed to inform your choice of candidate when recruiting for a position. There’s an entire field of psychology, personal and organisational that goes into these things, and they’re quite a comprehensive examination of ‘personality’ and how people perform under pressure, and in a team environment.
I can see why people feel inclined to use it.
Recruiting new staff is always an unknown of sorts, it’s difficult to predict from a 60 minute or so interview and a written application, even with referees, what a person will be like on the job and in the team you already have. With the emphasis on ‘team fit’ right up there with the right skills for the job, it’s difficult to make a decision that you feel comfortable with. So the inclination to use some sort of evaluation or test such as psychometric testing to give you some indicator of whether a person will be a good team player is quite strong.
Psychometric testing is designed to try and measure personality aspects or mental abilities, traits such as potential for leadership or calm under pressure. By unintended design, this will produce test results that favour a particular type of person. The tests are designed using the personality traits and aptitudes of an already successful ‘ideal’, and enable an employer to source ‘carbon copies’ of that ‘ideal’ candidate, which completely eliminates diversity from the employment picture.
A test might attempt to evaluate your numerical aptitude, for example. It might also ask questions about risk taking at work, or in general. And if you score low on the numerical aptitude and high on the risk taking, unlike the ideal candidate the test was based on, you may not be selected for a job in a finance section or as an accountant.
Do these tests actually work?
But, there’s more and more research coming out about the use of psychometric testing, and it’s not all good. There also appears to be an entire industry arising out of this practice to provide coaching and practice tests to improve test results – suggesting that with enough practice you can produce the results on a psychometric test that an employer is looking for – not an accurate representation of ability or aptitude.
And that’s the problem: the results can be skewed. And there is an increasing amount of research and case law showing assessments of people with a disability are discriminatory. In a recent case in the United Kingdom, an employer using a psychometric test was found to have discriminated against a person with Aspergers.
The test contained multiple choice questions which were virtually impossible for the potential employee to answer or interpret due to her difficulty with social interpretation and her reasoning in hypothetical scenarios. She had asked if she could submit short narrative form, a request which was refused.
In the US, employers using psychometric testing are now routinely warned about the use of the testing method when recruiting by the manufacturers of the tests themselves, because of the risk of discrimination defined by the Americans with Disabilities Act. In a recent case in the United States, an employer was found to have discriminated by using such a test to determine the suitability of employees with a disability for promotion.
There’s increasing discussion about the pros and cons of psychometric testing, but because of the growing evidence that the tests are simply unfair and discriminatory towards people with a disability, we don’t use them.
We’ll continue to rely on the ‘old’ method – interview, references and applications - with reasonable adjustment in place for those who require it.
Breaking into the employer market on behalf of our candidates may sound relatively easy, but in the age of globalisation we’ve been butting our heads against a few unexpected walls.
Exclusivity Clauses in Contracts Between Multinationals
Companies which are global multinational corporates generally have massive contracts for supply of labour or recruitment of staff. Because they operate globally, it’s cheaper for them to contract one provider who is also a multinational, to provide human resources, recruitment and temporary staff. Generally, when a contract is signed between two multinational companies for those services, there is an ‘exclusivity’ clause, meaning that no other recruitment provider can supply candidates or advertise jobs on their behalf.
This presents a bit of a problem for diversity and inclusion in employment, as global companies generally do not include a clause which specifies that candidates must be from diverse backgrounds, like our candidates. This effectively ignores the job seekers who are most disadvantaged in the labour market. Global multinationals do not specialise in diversity, nor negotiate reasonable adjustments or facilitate accessibility arrangements on behalf of candidates.
It also locks out agencies such as ours which do specialise in diversity and inclusion.
No ability for local teams to choose how they want to recruit
Another unfortunate side effect of a global supply contract is that local Australian branches of a multi national may be more enlightened, and want to recruit from a diverse range of candidates, and be ready to offer flexible working and accessibility arrangements, but because of their company’s global policy and exclusive contract with one supplier for staff and labour hire, they cannot recruit through an agency such as ours. They are locked in to a contract which offers no specialisation in candidates from diverse backgrounds.
Outsourcing labour to companies where recognition of diversity is not compliant with the UN Convention on the Rights of Persons with a Disability
Despite the fact that Australia has both signed and ratified the Convention on the Rights of Persons with a Disability, and the Optional Protocol, we have no control over the way a multinational company operates in terms of their compliance with the Convention. Multinational companies operate as a global entity, not subject to anything other than the law of the land in each different country. Let’s face it, businesses aren’t signatories to United Nations conventions, so there’s no obligation other than corporate social responsibility to consider the rights of marginalised workers.
About Psychometric testing …
One of the requirements of most international recruitment companies these days is a standardised psychometric test as part of the interview process. Unfortunately, psychometric testing can and does disadvantage candidates with a disability, as proven in case law in the United Kingdom, and which is specifically targeted in America by the Americans with Disabilities Act to prevent pre-employment bias. Enabled Employment argues strongly with employers to exclude our candidates from the currently popular practice of psychometric testing, as inaccurate results due to anxiety, invisible illness or other disability may be excluding candidates from consideration for employment. In fact, there are many scholarly articles which claim that psychometric testing is not an accurate predictor of performance on the job in any case. So, on top of the fact that smaller specialised agencies such as ours are locked out of multinational contracts, the recruitment practices of the companies in charge of recruitment for those multinational companies are running practices with potential bias against our candidates.
So, who can I speak to about this please?
Unfortunately, there are also technological barriers to finding the right person to speak with about providing quality candidates such as ours when a multinational with a global contract for recruitment services to another multinational uses systems which are fully automated, rather than directing an enquiry to a specific department or person.
Without being able to access the right person at a multinational company, we can’t present our business case and our arguments for diverse workforces and inclusion.
Culture and internal policy and procedures
When a global company outsources recruitment to another global company, recruitment becomes ‘someone else’s’ problem. If I’m working for a multinational, and I need a new staff member, I send an email to the department responsible for engaging new staff, and the process of sourcing appropriate candidates is undertaken by an external recruitment provider. They will source candidates from their database, and present them for consideration. If I am an enlightened manager, I may ask for a candidate that increases my workforce diversity and inclusion, which may draw a blank after all the possible candidates, have been screened by psychometric testing, and I will be presented with candidates who are not representative of a diverse and inclusive workforce. I have no choice except to go with the selection of candidates given, as I can’t contact any other recruitment provider under the terms of the global contract signed by my company.
The result is that my workforce will never truly represent the diversity of the population, and the people disadvantaged by the process will never get a look in. The internal policy of the company may be to encourage diversity, but the candidates I’m presented with won’t represent that diversity, and the workforce remains generic and lacking in difference and my global company will always recruit to a carbon copy of what I already have in my staff.
The middle management pressure point
The culture of an organisation is often set by high ideals, which is a great thing to have. However, high ideals – when talking about inclusion and diversity – may be enshrined in policy and promoted to staff, but the inevitable sticking point is not at management level, it’s at middle management level. The staff squeezed most tightly for time and who manage front line staff and tasks are the ones that will be employing diverse candidates, generally hold a misconception that people with a disability or seniors, carers, indigenous Australians or former service personnel will be ‘too difficult’ to manage given the time pressures middle managers are already under. As a consequence, despite the best intention of management to change organisational culture to become more inclusive, the sticking point becomes the middle management level who are time poor, and hold the misconception that employees with a disability will take more of their time in supervision.
It’s not all bad!
Despite these barriers, it’s really not all bad. There are provisions in some multinational corporate contracts for the inclusion of specialist recruitment providers such as Enabled Employment when the call for tenders goes out. If a corporate entity is serious about inclusion and diversity, they will require any tender for recruitment to include candidates from diverse backgrounds. This means there is a point at which a global recruiter may ask us to become part of the tender process in partnership with them, to provide candidates for roles on a regular basis, meeting the global corporate company’s requirement for a range of candidates with diverse backgrounds.
And that means that the commitment to real diversity in a workforce in at least the Australian arm of a global corporate will become accessible to people with diverse backgrounds, such as our candidates.
We continue to lobby on behalf of our candidates for better and fairer access to recruitment rounds, without psychometric testing, and we are very pleased to be included currently by several multinational companies to ensure our candidates are treated fairly.
As most of you probably know we are pretty big advocates of flexible work, we even won the inaugural Sir Ken Robinson Award for Workplace Flexibility last year from the Australian Human Resources Institute. One of the things we come across regularly is barriers to flexible work that are in old policies, procedures and even legislation. These barriers contribute to the appalling rates of unemployment and under-employment of people with disabilities in Australia. Until we can move past these restrictions on people even to ask for flexible work we won't do anything to improve the shocking statistics that are every day life for people with disabilities who want to work.
The Fair Work Amendment Act
The Fair Work Amendment Act 2013 was lauded as ensuring all Australians have the right to flexible working conditions.
This amendment to the Act enshrines the ‘right to ask’ for flexible working conditions in any new workplace or enterprise agreements in the future as a non-negotiable minimum entitlement.
The Fair Work Amendment Act 2013 gives parents, carers and people with a disability the right to ask their employer for flexible working conditions after twelve months continuous employment as either a permanent part time, or permanent full-time staff member. Long term casual workers may have the same right to ask after a longer period of time.
If you’re a person with a disability, you must be eligible for the Disability Support Pension as well.
So unless your disability is acquired in an accident of some sort or is the result of a sudden illness onset, you are expected to do 12 months continuous work for the same employer, before you have the right (in statutory terms) to ask for flexible working conditions.
In reality, all that’s changed since the Fair Work Act 2009 is that people with a disability now have the right to ask, after they have completed a year with their employer, and there is a formal process for ‘asking’, which must be in writing, and to which the employer must respond within 21 days.
How does this differ to other countries who are part of the OECD?
There are significant differences between Australian law and that of other countries in the OECD. The first is the time period elapsed before a statutory right to ask for flexible work kicks in. In the United Kingdom, for example, the statutory waiting period is 26 weeks, and anyone has the right to ask after that time, and there are no restrictions on who has the right to ask.
In Denmark, one of the best performers in employing people with a disability with flexible working, the government has taken a different approach. People with a disability in Denmark are eligible to receive the normal full amount of pay for a job, with the additional flexible working condition of reduced or flexible hours, for which an employer receives a subsidy of one third of the wage from the Danish government. People with a disability are initially employed with flexible work conditions under the scheme, and their rights to flexible working are enshrined in legislation.
In Australia, you must be employed by the same employer for 12 months, have caring or parenting responsibilities, or be caring for a family member who has experienced domestic violence, or have personally experienced domestic violence, be 55 years or over, or have a disability (and qualify for the Disability Support Pension).
There are also legislated directions on why employers can refuse a right to ask, which are specific and narrow. Australian legislation has a very broad range of reasons an employer can refuse flexible working, including ‘reasonable business grounds’.
Reasonable business grounds, the Fair Work Commission states, includes the cost of implementing a flexible working agreement, other employees arrangements cannot be changed to accommodate such a request, it is impractical to hire new employees to job share or work part-time, the change would negatively impact on customer service or a significant loss of productivity.
The bottom line remains that Australian law is more prescriptive about the right to ask as a minimum employment condition than other jurisdictions. And, particularly so when it comes to people with a disability.
What the Danish government has done openly acknowledges and encourages flexible working conditions for people with a disability from the outset of their employment. Many people with a disability are better able to manage their condition if they are able to work part-time, and from home. This acknowledgement allows the development of legislation and policies that directly addresses employer barriers to offering flexible working conditions for people with a disability.
Why do employers reject flexible working conditions?
There are many benefits for businesses who agree to flexible working conditions for their staff for any reason, not just people with a disability. Employee retention, employee satisfaction, improved productivity, less sick leave and carer’s leave taken, access to a bigger talent pool, reduced business travel, effective virtual teams, more agile infrastructure and reduced overheads. And there are many businesses and employers who realise the benefits of flexible working.
In Australia, the reasons for rejecting a request for flexible work include the term ‘reasonable business grounds’. The Fair Work Commission website defines reasonable business grounds as flexible work arrangements ‘cost’ too much, disturb other employees working arrangements, if it is not possible to hire new employees or change other employees working arrangements to accommodate the request, if there is a negative impact on either productivity or customer service. However, the Act itself does not contain a definition of ‘reasonable business grounds’, so it is open to interpretation.
To people with a disability, however, the problem isn’t the reason for knocking back a request for flexible work, it’s the extreme difficulty of accessing even the right to ask. For many people, the roadblock is simple. Many people with a disability would like to work, but without flexible working conditions their capacity to work is significantly decreased. That makes applying for jobs in your chosen field of expertise very difficult, if you’re looking for skilled work.
A Joint future
If Australia is to genuinely raise the workforce participation rate of people with a disability, there’s two parts of the economy that need to work together. Employers need to openly acknowledge, as in Denmark, that there are significant business advantages to offering flexible working conditions at the point where recruitment takes place.
And governments need to legislate the right to ask as a minimum employment condition for people with a disability right from the word ‘go’.
Without the imperative to consider flexible working arrangements, people with a disability will remain the sector with the highest unemployment rate, and business will remain office based, non-agile, and miss out on one of the best professional talent pools going.