Public hearing 19: Measures taken by employers and regulators to respond to the systemic barriers to open employment for people with disability, Virtual - Day 2

CHAIR:  Good morning everybody.  Today is the second day of Public hearing 19 of the Royal Commission.  The subject of the hearing is “Measures taken by employers and regulators to respond to the systemic barriers to open employment for people with disability.”

I commence by acknowledging the Gadigal people of the Eora Nation on whose traditional lands Commissioner Ryan and I are sitting.  I also acknowledge the Wurundjeri people of the Kulin nation upon whose lands Commissioner Galbally is sitting.  I pay our respects to their Elders past, present and emerging.  I also pay our respects to all First Nations people who are participating in or following this hearing.

Yes, Ms Eastman.

MS EASTMAN:  Good morning, Commissioners, and good morning to everyone following this broadcast.  We will start this morning with a panel of two people, one representing the ACTU and the other representing the CPSU.  We have on the panel Mr Scott Connolly from the ACTU and Melissa Donnelly from the CPSU, Commissioners.

CHAIR:  Thank you.  We will wait for them to come on the screen.

MS EASTMAN:  While that's happening, you will find a copy of Mr Connolly's statement behind Tab 3 in Bundle A and a copy of Ms Donnelly's statement at A 19 and a submission document at A 20.

CHAIR:  Yes.  I think we have Mr Connolly and Ms Donnelly on screen now.

Thank you very much for coming to the Royal Commission, notionally at least, in order to give evidence, and we thank you for the statements that you've already provided.  Just to let you know where we are all located, Commissioner Galbally is in Melbourne.  I am in the Sydney hearing room of the Royal Commission together with Commissioner Ryan who is on my right.  Ms Eastman, Senior Counsel Assisting the Royal Commission is in the Sydney hearing room as well.  I will now ask Ms Eastman to ask you some questions.

MR SCOTT CONNOLLY, CALLED

MS MELISSA DONNELLY, CALLED

EXAMINATION BY MS EASTMAN

MS EASTMAN:  Thank you.  Mr Connolly, can I start with you.  You are Scott  
Connolly?

MR CONNOLLY:  I am.

MS EASTMAN:  We might need the volume up a little bit so we can hear you.

MR CONNOLLY:  Yes, I am.

MS EASTMAN:  You are the Assistant Secretary of the ACTU and that's a position you've held since 2015?

MR CONNOLLY:  That's right, Ms Eastman.

MS EASTMAN:  You provided a statement to the Royal Commission which has one annexure being a recent ACTU policy.  Are there any changes to that statement?

MR CONNOLLY:  No, Counsel, none at all.

MS EASTMAN:  The contents of the statement are true and correct?

MR CONNOLLY:  They are, that's correct.

MS EASTMAN:  Ms Donnelly, can I turn to you.  You are Melissa Donnelly?

MS DONNELLY:  Yes.

MS EASTMAN:  You are the National Secretary of the Community and Public Sector Union, the CPSU?

MS DONNELLY:  That's correct.

MS EASTMAN:  You've prepared a statement for the Royal Commission.  Have you got a copy of that?

MS DONNELLY:  Yes, I do.

MS EASTMAN:  Are there any changes to the statement?

MS DONNELLY:  No, thank you.

MS EASTMAN:  The contents are true and correct?

MS DONNELLY:  Yes. 

MS EASTMAN:  As you are aware, the Royal Commission is looking at the employment of people with disability in open employment.  The Royal Commission will look early next year at segregated employment and the operation of the DES  
system.  I want to start with understanding what the ACTU does and the relevance of the work of the ACTU to people with disability.

MR CONNOLLY:  Thanks Counsel.  The ACTU is the Australian union movement's peak council, I think best describe us as the union representative of the unions, so unions across the country, all of them affiliate to the ACTU, and our role is really to provide a central gathering point after the movement and a central policy point for the movement and of course by extension the working people that are represented by our affiliates, some 37 or so across industries in this country, and all of which have a direct exposure to or an interest in both the labour market as it is and as we would like it to be in terms of areas of priority and reform and its principal function in providing outcomes for working families in terms of their own life experience and then economic (audio distorted) benefit.  So that's our role.  In terms of its relation to this area, clearly, you know, as organisations that have a commitment to social justice, equity and quality fundamentally, it goes to our values as unionists and as representatives of working people, the issue of the rights of people with disabilities to function in the labour market, in the open labour market, so this inquiry is critical to our values and something that absolutely aligns with our aspiration for people, regardless of disability and other forms of disadvantage, et cetera.

So we have an interest in this area, and the policy annexed to my statement.  It is a reflection of those current aspirations on behalf of the Australian union movement for people with disability in the context of their interface with principally the labour market, but other policy areas, of course, because of the integration of work with so many other areas in our society.

MS EASTMAN:  I want to ask you some questions about some of the detail of the policy and how that policy has come about.  In addition to the union's role in developing policy, the union has some special statutory functions in terms of being able to represent workers.  So the representative functions include, for example, being able to take proceedings under the Fair Work Act.  Is that right?

MR CONNOLLY:  That's correct.  We have rights under the Act to represent, and rights and obligations to the extent of our obligations to represent people and act for agencies in relation to awards and representative functions in relation to both grievances on behalf of members, workers generally in the context of awards and in the context of agreements that we might strike, that are struck under the framework of the Act.

MS EASTMAN:  If I put it this way, if we think about the journey of employment, it starts at a recruitment phase.  Then it might move into the terms and conditions in employment and then it might be around the remedies and circumstances of the termination of employment.  From the union's perspective, you have a special role in relation to negotiating terms and conditions of employment in the work that you do in assisting workers to negotiate enterprise agreements and collective working terms and conditions.  Is that right?

 
MR CONNOLLY:  That's correct, yes.

MS EASTMAN:  Then, where things might not go well in a workplace, and there might be, for example, allegations about breaches of the terms of an enterprise agreement or the Fair Work Act or, in some cases, if a person might need assistance on a dismissal, then generally the unions have got both the role of providing advice to advocate for workers, but you may also have that function of representing workers in proceedings in the Fair Work Commission or the Federal Court.  Is that right?

MR CONNOLLY:  That's correct, Counsel, and they are the functions that are central to the role of our affiliates and the ACTU's role in terms of supporting them in the performance of those duties.  So we can extend our work to multiple cases where the multiple unions of the ACTU might participate in that are of significance to the movement, that can provide support in terms of, you know, cases, be they be individual or collective cases that are on foot or potentially on foot, and then of course the extension of that goes to what are the policies, what are the frameworks, and how they might be changed is part of our work as well.

MS EASTMAN:  Now, people may be unaware of this, and the Commissioners have heard during the course of the evidence yesterday about some concerns for people accessing their rights under the Disability Discrimination Act and one of the issues raised was the standing to make complaints or who can commence litigation.  The unions have a specific role in the Australian Human Rights Commission Act.  But a union can lodge a complaint on behalf of another person.  Is that right?

MR CONNOLLY:  That's my understanding, Counsel, that that's one of our functions that is used and has been used historically.

MS EASTMAN:  I know you haven't addressed this directly in your statement and you may not know, but are you aware of any of the unions affiliated with the ACTU who have used that standing function to make claims on behalf of workers in a range of discrimination areas?  It might be sex, race, age or disability discrimination.  Is that something that you are aware of, and I know I haven't asked you this before so I'm springing this on you.

MR CONNOLLY:  I'm aware of it, Counsel.  I couldn't give you examples top of mind.  I know it's an area of law when I was engaged in an affiliate where I was actively involved in not necessarily the case but preliminary work for cases.  So, yes, it is an area of work that our affiliates do, and I'm aware that that is the case, absolutely.

MS EASTMAN:  All right.  Now, the last thing before I come to you, Ms Donnelly, is we asked both of you about the rates of employment within the union and union movement for people with disability, and Mr Connolly, you have said in your statement at paragraph 11 that you are aware that some persons identify as persons with disability but you don't, within the organisation, have an actual head count of the number of people with disability working for the ACTU or broadly among the  
affiliates.  Is that right?

MR CONNOLLY:  That's correct, Counsel, it's not something that we've measured or taken proactive steps to measure.

MS EASTMAN:  Is there any reason why that's the case?

MR CONNOLLY:  It just hasn't.  I don't think there's a reason.  I think in terms of priorities it hasn't been one that has been identified.  I think for us this is an issue that we, yes, we advocate on, support.  We are conscious of developing our own action plan and have taken steps to do that previously with work affiliates in this area and really us as an employer is a reflection, I think, of the labour market broadly and our affiliates as well where we have people with disability, have previously had them working with us.  But I think there is that disconnect between our policy work and advocate work and being an advocate and looking internally about how we might take steps, and I think our affiliates probably to a large degree are the same in terms of their vehicles that are largely members of the labour market in employment.

MS EASTMAN:  If we come in a moment to look at the new policy, would you agree with this proposition, that if the policy is going to work, then you need to start at home and have the relevant head count of the number of workers with disability who work within the union movement.  Is that not right?

MR CONNOLLY:  I wouldn't disagree with that at all, Counsel, no.

MS EASTMAN:  Ms Donnelly, can I turn to you.  As one of the members of the ACTU, your union has a particular role in relation to representing workers in the public sector, particularly the Australian Public Service, but also the Northern Territory and ACT.

MS DONNELLY:  They are our main areas.

MS EASTMAN:  What can you tell the Commission the particular function and role of the CPSU?

MS DONNELLY:  So our function as a trade union, we cover members of the Australian Public Service, so primarily in Federal Government employment and the wider public sector at the federal level, as well as the territories and some areas of private sector employment.  We represent our members through bargaining and collective issues in the workplace that usually occurs in the Federal Government on an agency by agency basis.  We represent grievance matters that may arise in their employment either during the course of their employment, or in some cases, of course, at the end of the employment if their circumstance leads to termination.

MS EASTMAN:  Does that work involve advocating for the rights of workers with disability?

 
MS DONNELLY:  Yes, it does, Counsel Assisting.

MS EASTMAN:  Does the CPSU have data internally of a head count of the number of employees within the union, not who you represent, who are people identifying as people with disability?

MS DONNELLY:  We do, Counsel.  We have approximately 3.6 per cent of our employees identify as persons with a disability.  We have over the last two years done a lot of work as an organisation in terms of a range of diversity groups.  So some of that reporting is relatively new, and I suspect it's under reporting slightly just in terms of our ability to capture that data.

MS EASTMAN:  I want to turn to the first topic for both of you, which is the role of the unions in developing policy with respect to the employment of people with disability, and just looking at that question of the terms and conditions of employment.

Mr Connolly, in your statement you've addressed the role of Congress in terms of developing policy and the process of developing that policy, and you've also touched on the ACTU's role in looking at policy from an international perspective.  So can I start with the international side and you've addressed this at paragraph 19, if the Commissioners are following the statement.  I raise this because at a recent hearing, the Royal Commission heard a little bit about the international labour organisation and the way in which international conventions setting out people's human rights have come from the international labour organisation with respect to employment.  So the Commissioners have touched on this topic.  And I thought it might be helpful if you can address the matters as you've done in paragraph 19 about whether what is happening at an international level is something that influences the development of policy in the employment area for the ACTU.

MR CONNOLLY:  Yes, Counsel.  It does.  I think foundationally that's sort of how we approach our priorities is sort of looking at, of course, the fundamental conventions that talk to the rights of labour --- the conventions that relate to the rights of labour that go into this area, the right to --- the convention in relation to a disability and the freedoms that are associated in relation to that.  The ILO plays a critical role in this area in terms of both, I guess, the steward and custodian of these conventions.  And in our context, I think there is a global framework of rights much like there is domestically a framework of rights for people in work, and we play a role both domestically as custodians and advocates and similarly we play that role internationally providing a pathway to reflect what's happening domestically in the global forum and my statement goes to some examples where we've made the case of our concerns with the domestic frameworks of rights in relation to the assessment tools, the intersection of the general protections and unfair dismissal rights for disabled workers, some of the social protections clause, and the employment service conventions.

My statement speaks to some of those examples where we, as part of our obligations  
and one of the functions of the ACTU as the peak organisation of Australian unions is to represent our movement globally in the ILO, and participate in those conventions on behalf of our movement.  So we participate in the debate and equally report on behalf of Australian workers in the global context.  And we don't apologise for our perspective that, you know, we wouldn't say that the domestic experience of the international conventions is satisfactory, and nor would we say that the international conventions are all they could be in this area or many other areas.

So it is an ongoing area of work, and I note the evidence you alerted us to in a previous hearing that I think, you know, speaks of some developing areas are here and I think one sort of reflection from us on this sort of part of our work is that it's very slow and, you know, I think international negotiations and the complexity of trying to get consensus at the ILO is a reflection of that, and equally, countries ratifying conventions and then making the decision to implement them invariably leads to some gaps between the principle and its application.  And we are no different in regard and some other areas.

MS EASTMAN:  Tell me, the international conventions have been influential on the development of some industrial laws, if we go back, for example, to reforms back in the 1990s, that international conventions were often used to underpin the development of workers' rights protections.  The ILO has been very significant in that.  But I want to know if the union has also looked beyond the ILO.  And so this Royal Commission, for example, is looking at the Convention on the Rights of Persons With Disabilities and we are thinking about how should that Convention be better implemented in Australia.  Is that a convention that has come on the ACTU's radar, particularly with respect to the way in which that Convention deals with the rights of persons with disability in work and in employment?

MR CONNOLLY:  Only in a general sense, Counsel.  As one of the conventions that speak to the rights of workers so, you know, I think us taking forward an agenda pursuant to this right hasn't been the case.  But of course we are aware of it.  It provides part of the framework and I think, you know, there is absolutely a piece of work, how do we use these conventions to advocate the cause and then, you know, how do you implement them.  I think the whole area of work here about the significance of these conventions is increasing, but I think there is sort of that reality about how are they applied domestically; for us, how do they intersect with the domestic framework and how do we see these laws, these conventions applied domestically and how do we enforce them, and then how do they make a difference to people with disability or otherwise in work.

MS EASTMAN:  Can I ask you now, turning to a domestic framework, you've told the Royal Commissioners in your statement about the process of Congress adopting policy, and you've provided to the Royal Commission the ACTU Workers with Disability policy.  So that's a policy that has been recently adopted.  Is that right?

MR CONNOLLY:  That's right, Counsel.  Yes.

 
MS EASTMAN:  In terms of the reasons for taking this approach set out in the policy, workers with disability, can you tell the Royal Commission how that came about?

MR CONNOLLY:  Yes.  It's part of our governance structure for us for close to a hundred years now, it's been to the Congress of Unions to convene.  We get together every three years and decide our policies and priorities for the proceeding three years and indeed ---

MS EASTMAN:  Sorry to jump in there.  Rather than you telling us the ins and outs of Congress, can I get you to focus on why this policy at this time?  So specifically putting this policy up.

MR CONNOLLY:  Well, I think for us this is an area that is a gap in our current framework and we are not doing enough for people with disability in work and outside of work.  So, you know, in that context we have identified, some years ago, that this was an area that we needed to develop.  We've established a committee that did some work on both our own employment practices, spoke about previously and equally our movement's practices.  We notice that some of our affiliates are more advanced in these areas, some have functioning committees that go to --- actively playing a role in the policy space and the advocacy space for disabled workers, and the ACTU as a reflection of that picked up that work and has put it in this context as a reflection of what the movement's priorities and principles are for people with disability as a way of focusing our attention for the work going out of the Congress.  So that's sort of ---

MS EASTMAN:  Were people with disability involved in the drafting and design of this policy?

MR CONNOLLY:  Where that has been possible, yes, so I guess in our context previously we've had an active committee at the ACTU. We've convened a disabled workers committee that has included and does include, to my knowledge, some workers that would identify as disabled workers in the formulation of the policy.  Our affiliates do the same.  They come together, they've had multiple discussions about the policy and about its ownership.  I guess we try and ensure     I couldn't say it's all people that identify as disabled but certainly they've participated in the process as best as that can be.

MS EASTMAN:  Without going to the detail of the policy, it's got a combination of identifying policy reform areas.  It's got aspects of amendments to the Fair Work Act, for example to include in the National Employment Standards a minimum leave entitlement to support workers with disability, so adding to the other areas of leave in the NES, but it has also got some commitments in relation to representing workers with disability, including workers who acquire a disability in the course of their work.  And so you've made some observations in this policy about the importance of superannuation, income insurance and support for injured workers.

 
Would it be fair to say that this is a very ambitious policy in terms of all of the areas that have been identified?

MR CONNOLLY:  I think it would be.  Like most of our policy documents, they speak to the aspirations of our movement, and unfortunately the reality for, you know, far too many workers in this country, their conditions need to be better.  And, you know, us as their advocates need to have those aspirations and focus of advancing on their behalf.  It's no different for workers with disability.

MS EASTMAN:  What are the expectations in terms of taking this policy and the words on the paper into sort of seeing action?  So what are your expectations and how are you going to measure whether you meet the expectations?

MR CONNOLLY:  You know, our work is seeing how we implement the policy is at every opportunity, this provides the framework for how we advance and advocate, you know, for this area of the ACTU's work.  So if that is in our conversations in relation to amendments to the Fair Work Act, conversations in relation to supported employment or proceedings in relation to that, conversations with our affiliates or equally in both the global work we spoke about previously, how we interact with the ILO and other global bodies that speak for workers or play that function.  And similarly of course with our Commonwealth Government and State Governments where the ACTU, largely with the Commonwealth Government but through our sister organisations in States, have a regular interface with policy and lawmakers, and this document is the basis for those engagements and our priorities in those interactions over the course of the next three years and how we assess its effectiveness will be a conversation and an assessment leading into our next Congress about where we got ---

MS EASTMAN:  Does it need to be something a little bit more than a conversation if you go to assess the effectiveness of the policy?  Do you have to have something concrete to be able to measure whether these policy objectives have been achieved?

MR CONNOLLY:  Look, I think a lot of these things are out of our control, and as an advocate body we can advance these causes, make the case.  But the decision makers here are, to a very large degree, our lawmakers.  In relation to amendments to the Fair Work Act, for example, those are matters that will be decided by Government.  Of course, we will participate in those processes and advocate the cause, but the decisions will be made by the people sitting in Canberra.

MS EASTMAN:  Ms Donnelly, it might be opportune to turn to you now because one of the areas of work where you've been involved from a policy perspective has been in supporting your members and understanding what your members are seeking by the Australian Government's Australian Public Service Disability Employment Strategy 2020 to 2025.  That has been a big area of work for your union over the last couple of years.  Is that right?

MS DONNELLY:  It has been an area where we have sought engagement with our  
members who identify with a disability, and I guess, sought through them and represent their views about what needs to happen in their own workplaces.

MS EASTMAN:  In the preparations for the development of the employment strategy, you did a survey of the members to get a sense of what the members identified as priority areas for a new National Disability Employment Strategy; is that right?

MS DONNELLY:  That is right.

MS EASTMAN:  You've provided to the Royal Commission a copy of the submission that was made in relation to the development of the strategy and that identified a number of recommendations?

MS DONNELLY:  That's correct.

MS EASTMAN:  What were the sort of key areas coming out of the survey and the reason why you identified the particular recommendation?  Do you want to speak about that?

MS DONNELLY:  Yes, certainly.  So there were a range of issues that were identified through this survey.  We don't have, as a union, perfect data on disability disclosure, so the way we went about this was we put it  out to all of our members and asked people who identified as a person with a disability to participate.

There were a range of concerns that came out through that process.  One is around the fact of disclosure.  There are lots of people who have not or are uncomfortable identifying their disability to their agency for whom they work, and the reasons around that are that they are concerned they will face discrimination of some kind if they make that disclosure.

There are a range of concerns about employment opportunities and we did ask people specifically around their experience through recruitment processes.  As a union we would rarely, I guess, have the opportunity to represent people through recruitment processes, but we have had experience in some areas where, for example, there have been artificial barriers, in our view, in place that would restrict the opportunities around people with a disability.

An example I could give on that is the National Disability Insurance Agency advertising planner roles, where being able to address vehicle problems, and being able to walk over uneven terrain were identified as requirements.  So there were issues around recruitment, there were a large number of participants in our survey who experienced poor or very poor recruitment practices.  There are issues around reasonable adjustment.  This is an area where we do have more direct experience representing our members, people who need obviously an adjustment of some kind in their workplace.  And it was of serious concern to us that less than 20 per cent of the respondents to this survey indicated they had had a positive experience in getting  
their reasonable adjustments finalised with their agency.

There was also, I guess, a range of findings around representation of employees in more senior roles.  The support or lack there of, to be honest, from management for employees, you know, some of the comments we got through this process were included that in terms of support for staff with a disability, nothing happens unless you have the right line manager.  So there are examples of people getting the support they need but it really was the luck of the draw about who your manager was and the particular outlook they had on those processes.  And there was, I guess, a concerning assessment of the people who participated in our survey about the capability of their management and senior management addressing employment issues for people with a disability.

So I think they were some of the key things.

MS EASTMAN:  The strategy has been published and I might ask to come up on the screen the graphs, the infographics used in the policy.  So this is the "at first glance".  I don't know if you can see that on the screen there.  Ms Donnelly, can you see that?

MS DONNELLY:  Yes, I have it in front of me too.

MS EASTMAN:  All right.  So looking at that in terms of understanding the Australian Public Service and just a bit of a profile of what our public service looks like, if we look at representation, the majority of employees are women of 60.3 per cent.  And it also gives us a sense of the mean age of employees, the representation of Indigenous Australians and the like.  It also tells us the location of APS employees and the age, but I want you to just look at the classification.  So, looking at those classifications, that covers, in a sense, the way in which when people work for the APS they're classified at particular levels, and they may remain on that level for their career or they may move through the levels depending on the particular jobs that they might apply for at different points of time.  I know I am putting that in a very crude summary way, but do you agree with that?

MS DONNELLY:  Yes, broadly.

MS EASTMAN:  One of the objectives of this policy or strategy is to achieve an outcome of 7 per cent of the APS being workers who identify as workers with disability?

MS DONNELLY:  Yes, that's correct.

MS EASTMAN:  So we know from the statistics available that at the current point in time, in terms of the data held by the APS, 4 per cent of the APS are workers with disability.  So we know that?

MS DONNELLY:  That's correct.

 
MS EASTMAN:  Right.  And the objective of this policy is to achieve a rate of 7 per cent by 2025?

MS DONNELLY:  That's correct.

MS EASTMAN:  Now, you've said in your statement with respect to the census, so this is a disclosure point, is that when people have responded to a census or a survey and they've disclosed a disability perhaps on an anonymous basis, the number of APS workers with disability may exceed 8 per cent at the present point in time?

MS DONNELLY:  Yes, and I guess we've reached that conclusion based on the feedback we've had that people are not making the disclosures.  So the data point for measuring progress on this is uncertain.

MS EASTMAN:  So if the objective of this strategy to 2025 is to achieve 7 per cent and the true figure is already 8 per cent, does that cause you some concern as to the overall objectives of this strategy?

MS DONNELLY:  It does, and that is why the issue of disclosure was one of the points we have made in our submission to the APSC on this.  We can't be certain that it's 8 per cent, but from our survey which was not, of course, of the whole APS, but there is a clear gap between existence with disability and disclosure, and it would be unfortunate if this strategy did not result in more employment of people with a disability, but the only thing it achieved was addressing that disclosure.  Addressing that disclosure in and of itself, that disclosure gap would be a good thing, but that doesn't change the paradigms of people with a disability.

CHAIR:  Does the figure of 6,004 that is in the chart on the screen represent the 8.4 per cent?

MS DONNELLY:  No.  That is the APSC' s figure.  So that is of known disclosures.

CHAIR:  So that the 8.4 per cent would then be something like 14,000?

MS DONNELLY:  Potentially, yes.

MS EASTMAN:  The strategy identifies that the APS needs to an employ an additional 1600 workers with disability to achieve the 7 per cent.  I want you to turn to the next graph, which is page 13 of the Strategy.  This is described as “APS employees who have shared their disability status by classification” and then with the different colours, the colours to achieve 7 per cent.

So, looking at this, if we see across the band, you can see, depending on the band, APS1 up to SES3, that the different levels need to be addressed in different ways.  So it's not a one size fits all.  Is that a fair interpretation of the graph?

MS DONNELLY:  That is a fair interpretation.  My understanding of the strategy  
that the Government has adopted is that it's a universal 7 per cent, but there are differing gaps, that is definite.

MS EASTMAN:  Right.  So looking at the strategy overall, SES3 is the highest level that you can achieve in the APS until you are outside of the APS and you're into very, very senior positions in Government, perhaps Departmental Secretaries and the like.  Is that right?

MS DONNELLY:  That's right.

MS EASTMAN:  So at the present time, according to this document     sorry, I withdraw that.

At the time this document was released, the SES3 had four SES3, and to achieve 7 per cent requires one additional appointment to SES3, assuming that the four who are already there would remain.  Is that right?

MS DONNELLY:  My ---

MS EASTMAN:  So you need five.  I withdraw that.  So four remaining and five additional?

MS DONNELLY:  That is my understanding of this document.

MS EASTMAN:  Right.  In your experience in terms of APS employment and the movement of people and the levels of recruitment, is achieving five additional positions over five years at SES3 level something that will be difficult to attain?

MS DONNELLY:  I do not think so.  It's a relatively small number over a long period.

MS EASTMAN:  If the disclosure rate is higher than the 7 per cent, as you've suggested, then do you think this strategy needs to address the real numbers in terms of people who need to be employed rather than the non disclosed numbers?

MS DONNELLY:  I think it absolutely does.  I think there needs to be a better and clearer understanding of the starting point to actually set the goals that would be appropriate.

MS EASTMAN:  Is one of the assumptions that has to underpin this strategy, is that when people become employees of the APS, that they have to disclose their disability and that would be essential to this policy or strategy working effectively?

MS DONNELLY:  That is not something the union has taken a position on.  I think that whilst there are concerns for employees in disclosing their status, I think the starting point has to be providing a supportive culture and environment for people to feel comfortable to make those disclosures.  We haven't taken a view, and I would be  
reluctant to do without consulting with our members in this space.

MS EASTMAN:  I don't want to put you in any difficult position, but I think what I'm trying to understand, and I will ask the representatives from the Australian Government later this week, is if you device a strategy with an assumption about the existing numbers and an assumption about how you are going to achieve a particular target, and what underpins those assumptions might not be accurate or complete, that does have implications, does it not, for the strategy to be effective?

MS DONNELLY:  Absolutely.

MS EASTMAN:  Mr Connolly, I'm not going to ask you to comment directly on this strategy, but does the ACTU have a view about setting quotas or targets of this kind, and if so, are you able to assist the Royal Commission about whether strategies of this signed to set targets or quotas are effective?

MR CONNOLLY:  Counsel, it's just an area that I wouldn't --- again a bit like Melissa, it's not part of our current policy area.  I need to add that clearly having a target has some merit and I think there is other areas of law in relation to gender equality where we've been able to be effective by doing such.  And I think that's thinking for us to do.

MS EASTMAN:  But you've commented in your statement on this issue around disclosure and also the issue around intersectionality that people are not just people with disability, there will also be women, people from diverse backgrounds, et cetera.  So rather than perhaps ask you about quotas and targets, what's your experience on disclosure?  This question of either requiring disclosure or allowing the person with disability to decide for themselves whether they want to share their disability identity, how does that have an impact then on developing policy if you are looking at, for example, increasing labour force participation of people with disability?

MR CONNOLLY:  I think again it's an area we haven't formed a view on in relation to the requirement for disclosure because there are areas we identify in our statement about the complexities, the respect for the individual views and their own situations, and I think the point Melissa has made well is that the issue that we face today is the lack of confidence that people have in relation to disclosure and their experience at work.  And I think until we can overcome some of those bigger systemic issues, this conversation about disclosures, unfortunately it will remain complex.

MS EASTMAN:  Can I turn to the final topic I want to ask you about, Ms Donnelly, which is the work the CPSU has been doing on the specific issue of mental health in the workplace.  For workers with psychosocial disability and workers with mental health issues, you think there needs to be an approach where workplaces understand mental health issues from a work health and safety issue, and you say, I think, in your statement that in supporting workers with mental health issues, there is a role for employers to look at what might be risk factors in the workplace that could either  
cause or exacerbate mental health.  I hope I've done justice to summarising that part of your statement, but could you tell the Royal Commission what strategies and approach has the CPSU taken to address mental health issues in the workplace?

MS DONNELLY:  Sure.  Mental health issues in the workplace have become an increasing area that is raised with us by our members and delegates and increasing area of concern.  Two or three years ago we commenced a piece of work that we have engaged in with a range of major APS agencies.  That really was based on getting a better understanding of people's mental health concerns and how they were being addressed in the workplace, and then seeking to engage with those agencies to address the policies in place to support people as well as running training for our members and delegates around mental health first aid.

The real, I guess, genesis for this was we became acutely aware that mental health issues in the workplace, when they manifest, you know, at a late stage in the process and come to the union's attention, it's very difficult to support people.  And there are a range of concerns that are essentially industrial or collective in nature that drive some of the     or exacerbate rather, some of the contributing factors.

So we took the view that it would be, you know, in our members' interests, it would be in the employers' interest, it would provide a better and safer workplace if we can have better support systems and better understanding of the triggers and how to assist people early in that process.  So that is an ongoing piece of work that we are continuing to do and I think that it is really important in terms of addressing broader workplace health and safety issues and for people with a disability, some of these mental health factors as well can have that, I guess, intersectionality, can have an additional impact on their safety and wellbeing at work.

MS EASTMAN:  It's a case, isn't it, sometimes if mental health issues arise in workplaces, it can raise some really challenging issues on all sides for the worker but also for the employer and in some cases the impact on other employees?

MS DONNELLY:  Absolutely.

MS EASTMAN:  How does an employer, in your experience, navigate these issues in a way that seeks to understand disability but also seek to ensure that the employer can comply with a range of other legal obligations in relation to other employees.  And I know this is a sensitive and difficult issue, but it's an issue I think the Royal Commission would be assisted in understanding.  But if there's a perception of a clash of interests or rights, what do employers need to be doing to better address those circumstances?

MS DONNELLY:  I think one of the factors that exacerbates these situations is when the managers or management don't have their capability to deal with them as early as possible.  I've never seen a situation in a workplace that involves mental health issues, particularly for people who may also identify with a disability that improves without thoughtful intervention to try to address the concerns.
 

So circumstances where mental health is a key factor in terms of individual grievances, if it comes to the union's attention for a representation at a late stage in that there are other proceedings, other workplace proceedings or disciplinary proceedings already afoot, it is very difficult in those circumstances to navigate a successful outcome for all parties.  Which really     I mean, it's that realisation which really drove our work to try to get better policies and procedures and education earlier in the process to assist people when these issues arise.

MS EASTMAN:  I might put this to Mr Connolly: this doesn't sound any different to the approach that we expect employers to take in avoiding, say, physical injuries in workplaces.  We have very robust work health and safety laws that are designed to provide safe workplaces.  In your experience, can you comment at all on that intersection between work health and safety and the rights of workers with disability?

MR CONNOLLY:  Yes, if I might.  Thank you, Counsel.  I think it is an important area, and I think the point you allude to, that Melissa has just commented on about psychosocial health and mental health, and that is an area that is emerging, it is one that is very much in our minds currently.  But I think to answer your question perhaps, the frameworks you refer to are so critical in terms of the capacity of workers to have a right, a positive right and equally a clear and positive obligation on employers to provide health and safe protections for people in their health and safety at work, and that as a framework --- I think it's 1993 fundamentally that we adopted what is currently the current OH&S framework, so a while ago, but it was a significant step in making it clear and explicit that this is an expectation for the nation and then all of the States adopted similar legislation about that fundamental right and the associated frameworks.

And that, I think, is the missing piece here, inclusive of positive obligations is the missing piece that is in our minds about what is the next step that OH&S law in regard of mental health and psychosocial health, absolutely, and how do we bridge that gap, as this is a workplace health and safety issue in our minds.  But similarly I think it's illustrative and perhaps instructive about what is missing in terms of the rights of workers with disability and how do you shift to providing that positive obligation, hence some of the amendments that we referred to and have consistently called for in terms of the amendments to the Fair Work Act, about providing a positive obligation and removing some of the, frankly, antiquated protections that are in the legislation currently to create the framework that is missing, in our minds anyway, in this area so we can advance the cause and rights of workers with disability to participate in employment.

MS EASTMAN:  Commissioners, I'm mindful of the time, and both witnesses have prepared very comprehensive and detailed statements, but Commissioners may have some questions.

CHAIR:  Yes, thank you.  I will ask Commissioner Ryan first.  Do you have any  
questions?

QUESTIONS BY THE COMMISSION

COMMISSIONER RYAN:  Just a couple for Ms Donnelly.

Ms Donnelly, you might have heard people in evidence yesterday, people venting the idea of introducing targets or quotas.  Does your union have any regulars reservations about the possibility of that occurring?

MS DONNELLY:  No.  I think that in the public service, it would be our view, absolutely, that the government and the public sector should lead the way in employment in a range of groups, and whether it's characterised as such in the APS strategy, but the target of 7 per cent effectively would operate in that way.

We have, across the APS, had a range of targets at different times around, you know, employees with disability, employees with Aboriginal and Torres Strait Islander backgrounds.  My only reservation is that once you set a target, it has to be driven with policy and resourcing and prioritisation to actually achieve that.  I think at times at a public sector level we've seen strategy documents and targets or but they have not been able to, you know, make a difference in terms of the actual employment numbers both around recruitment and retention issues.

COMMISSIONER RYAN:  The other thing that arises for me and my own previous experience in the public sector, is it's very hard to change the profile of the public sector without a considerable amount of external recruitment.  One of the things that tends to lock people with disabilities out of the public sector is that more often than not a lot of positions in the public sector are internally recruited and it's recycling the same number of people and that situation is somewhat exacerbated by the fact that there has been downward pressure on some areas of the public sector where people with disabilities might enter.  Are you relaxed about the possibility in order to achieve a significant increase of people with disabilities, particularly I notice the areas that apparently where there will be a significant need for increases at APS6 and the first level of the SES, there is about 2,000 new people with disabilities required.  To meet that target, that would be a considerable amount of recruitment over a number in of years in order to change the profile of the public sector.  Does that give the union any cause for concern?

MS DONNELLY:  So across the APS over the last number of years, we have seen what you characterised as downward pressure on APS numbers.  That doesn't necessarily reflect the total workforce of the Australian Public Service or, I should say, that doesn't reflect the actual work done for the Australian Public Service.  To give you an example, the NDIA, which has a higher staff profile with employees with disability as you would expect, I believe it's 11 per cent, off the top of my head.  That is an agency where the government's staffing cap has had implications with very  
higher use of labour hire employees, and we --- in that agency with higher use     sorry, higher rates of employment relative of employees with a disability, and that use of labour hire has caused particular concern.

So we would absolutely welcome those kind of roles, you know, being brought directly into the APS.  Because the circumstances where people face, if I could characterise it as a double disadvantage of dealing with being an employee with a disability and dealing with potential barriers but also dealing with insecure work and uncertain about who has the obligation to you to make reasonable adjustments, and make your workplace safe for you, has actually caused a range of very significant problems and is a disincentive for employees with disabilities to work in the public sector.

COMMISSIONER RYAN:  So you would agree with me in order to achieve any ambitious target of change in the profile of the public sector with regard to people with disabilities, there would need to be not just a target set, but a significant change to the way in which we recruit and appoint our public servants in order to achieve that target?

MS DONNELLY:  Yes.  I would agree there needs to be significant change in how processes are undertaken.  There is, for example, RecruitAbility used, and I had a look yesterday at the APS jobs gazette and overwhelmingly the numbers of jobs advertised are against that     that program is included, rather, I should say, but it's not resulting in those employment numbers.  So I think that it is about the actual recruitment decisions and processes and circumstances where there are artificial barriers being imposed now that need to be addressed, and the use of those kind of insecure work arrangements, particularly where an agency like NDIA represents a significant double disadvantage for people with disability.

COMMISSIONER RYAN:  Thank you.

CHAIR:  Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  The disclosure discussion is very striking, really, that people are scared to disclose frankly, they are scared about how they will be treated.  So, you know, the strategies to change things, I'm just interested in the ACTU.  I mean, that is very, very serious, isn't it, that people are so frightened to disclose their disability in a workplace?

MR CONNOLLY:  Absolutely, Commissioner.  I think it is a significant concern and it's a significant drag on our effectiveness in this space.  And I think, you know, the challenge is workers within this category and ourselves to communicate more broadly.  You talk about the cultural issues and systemic issues really talk to how significant this is if we were going to make the changes we need to make, quite clearly, then it's a very     a big shift required not just from employers and, you know, participants in the workplace, co workers and others, ourselves included.  But equally, you know, much wider than that in terms of governance and cultural  
participants as well and social participants.  Because I think that's our experience and our own as an employer, we don't require disclosure, welcome it, but don't require it.  And I think we are a very progressive employer I think is how I would describe us.

COMMISSIONER GALBALLY:  Well, requiring it in the current environment when people are really scared to disclose might be very counterproductive but Ms Donnelly, what strategies do you think your union     you know, you must be very concerned about this from your survey.  So, you know, what can be done to make it much safer?  Because obviously people feel very unsafe.

MS DONNELLY:  Look, that's a very good question, Commissioner.  As I outlined earlier, we obviously deal with individual matters in this space, but dealing with an individual matter isn't going to change those attitudinal or cultural issues that people feel in the workplace.  So we have done a range of work, particularly in workplaces or agencies where we know there is a larger cohort of employees with a disability.  So specifically in NDIA we have done agency specific work to identify people's concerns to advocate for them where there's, you know, concerns around reasonable adjustment not being afforded properly, concerns about how management have engaged or supported employees with a disability.

So in part our strategy, where we can, is to collectivise these issues to take the responsibility off individuals and be able to take it forward as a collective issue and advocate in that way.

In terms of the mental health space which, you know, for some employees will relate to identification of a disability, the work that I alluded to earlier about surveying and then seeking improvements in policies and undertaking training is also really designed to shift understanding and engagement with that issue from both individual, but, you know, it's a problem to something that, you know, it's okay, but we need to support people and address these issues in the workplace so people are safe.  So they are some of the kinds of strategies that we are seeking to undertake.

COMMISSIONER GALBALLY:  And the ---

CHAIR:  Commissioner Galbally, I'm conscious of the time.

COMMISSIONER GALBALLY:  I've got one more question.

CHAIR:  Yes, all right.

COMMISSIONER GALBALLY:  The low levels of reasonable adjustment as reported in your survey too are of great concern.  The resistance to adjust a workplace, for workers including flexible arrangements which comes up in the ACTU policy as well.  I wonder if you could both comment on that.  Thank you.

MS DONNELLY:  I think from our perspective, the issues around reasonable adjustment and the experiences enclosed with a disability have, either in not being  
accommodated or having issues along the way, whether it's implementation or delay or difficulty, really exacerbate the cultural workplace issues about how people feel supported in the workplace.  It's not to say that everyone has a bad experience, but at least in the survey results we had, a lot of people faced difficulty in this space, and it's perhaps unsurprising then, if you are an employee with a disability and you see someone else having real trouble, then you accommodate it and you think it's not worth disclosing.

COMMISSIONER GALBALLY:  Yes.  Yes.

MR CONNOLLY:  I will add to that, Commissioner.  I think the issue here, it's fundamentally discretionary and that's our experience.  There is positive experiences, you know, of course, and progressive employers go out of their way to make the adjustments rightly because they've got a commitment and they value alignment on this issue.  But far too many, I think, have the discretion not to do that, and that's the issue of how do you create the positive obligation here.  I previously worked in the transport sector.  It's difficult.  Of course, many issues confront that industry, but I think much more could be done if there was a positive obligation because the hurdles to adjustment are not always insurmountable or unreasonable, as the current legal framework provides the escape clause for.

CHAIR:  Yes.  Thank you.

Ms Donnelly, could you tell me what proportion, please, of the APS are members of your union?

MS DONNELLY:  It would be around 30 per cent.

CHAIR:  If there is 8.4 per cent or 8 per cent roughly identified as people with disability, that would suggest there are about 2,500 people with disability then who are members, is that about right?

MS DONNELLY:  Broadly so, yes.

CHAIR:  You had 52 responses to your survey, did you not?

MS DONNELLY:  That's right.

CHAIR:  It's not enough to draw conclusions, is it?

MS DONNELLY:  No.  I mean, we do not have the systems in place for the union to ---

CHAIR:  I'm not being critical, I'm just saying that if you've got 52 responses to a survey, it's very difficult to draw --- you can't draw statistically valid conclusions from it, so we have to be a little bit cautious about that, I imagine.

 
MS DONNELLY:  Absolutely.

CHAIR:  Mr Connolly, it's a little odd that the ACTU's policy makes no reference at all for the Convention on the Right of Persons with Disabilities.  It rather suggests that it hasn't figured really in the thinking of the ACTU.  One might have expected there to be at least some reference?

MR CONNOLLY:  I think it isn't foremost in our minds.  These conventions aren't in terms of our work domestically, and these policies speak to our domestic priorities.  Odd in terms of --- all of our policies don't call out the relevant conventions as foundation stones, but I think we take it as read and you can assume that they are the framework and foundations for all of our policy frameworks, be they referred to or otherwise.  But your point is noted.

CHAIR:  It's hard for it to be part of the framework if it's not referred to, I would have thought.

MR CONNOLLY:  I don't agree with that, Commissioner.

CHAIR:  You don't agree with that?

MR CONNOLLY:  No, the international conventions about the rights of the worker is fundamental to the work of the ACTU.

CHAIR:  I'm not talk talking about the ILO.  I'm talking about the Conventions on the Rights of Persons with Disability.

MR CONNOLLY:  This is included in it.

CHAIR:  Your position is it plays a significant part in the thinking of the ACTU even if it's not referred to in a policy specifically dealing with the employment of people with disabilities?

MR CONNOLLY:  In this policy area, I think I've said it provides a foundation how we approach this issue.

CHAIR:  All right.  The policy refers to the settlement of a class action, paragraph 17, which resulted in a $100 million settlement for underpaid workers with disability.  Who brought that outcome?  When I say that, I assume it's a representative proceeding and there would be, as it were, a nominal plaintiff or applicant.  But who supported the proceedings?

MR CONNOLLY:  Can I take that on notice, Commissioner, and come back to you?  I don't have that to hand.

CHAIR:  I'm wondering whether the 70 per cent refers to a settlement that said that the total award was 70 per cent of the wages taken or whether that reflects something  
that was taken by a litigation funder.

MS EASTMAN:  Chair, I'm sorry to jump in.  Even though these matters are addressed in Mr Connolly's statement, these are issues we will explore in a future hearing.

CHAIR:  That's all right.  If Mr Connolly is able to help us?

MR CONNOLLY:  I will come back to you, Commissioner.

CHAIR:  Thank you very much.  I assume that there are no represented parties that wish to ask questions of either Ms Donnelly or Mr Connolly, unless someone jumps up.

That being the case, thank you very much for giving evidence today and for the statements that you've provided.  We appreciate the assistance that you've given to the Royal Commission.  Thank you.

MS DONNELLY:  Thank you.

MR CONNOLLY:  Thank you, Commissioner.

THE WITNESSES WITHDREW

MS EASTMAN:  Commissioners, can I just note as the session concludes that in terms of the CPSU survey with respect to the responses on the questions of adjustments, page 7 of the survey sets out those responses.  The question of adjustments is raised in a number of different areas, not all in one area.  So the survey results are quite different.

So if I could just ask the Commissioners, in looking at the evidence in relation to the responses on adjustments, that they need to be looked at in the various areas because the responses differ.  For example, 70 per cent of respondents said that their physical needs were being met in the areas of digital accessibility and are sort of more general reasonable adjustments.  There were different responses.  So I just think it might be helpful for Ms Donnelly's evidence to be considered in its full context.

CHAIR:  Are they responses of a cohort of 52?

MS EASTMAN:  Yes, that's right.

CHAIR:  Shall we take an adjournment now until 11.25?

MS EASTMAN:  Yes.  Thank you.

 

ADJOURNED    [11.11 am]

RESUMED    [11.26 AM]

CHAIR:  Yes, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.  Our next witness is Jennifer Westacott AO.  She is the Chief Executive Officer of the Business Council of Australia.

CHAIR:  Yes.  We will wait for Ms Westacott to come on to the screen.  Yes.

Good morning, Ms Westacott.  We can see you.  I hope you can hear us?

MS WESTACOTT:  I can see you and I can hear you.

CHAIR:  That's excellent.  Thank you for coming to the Royal Commission to give evidence and thank you for the statement that you've provided.  I just want to explain where everybody is.  Commissioner Galbally is joining the hearing from Melbourne.  I am in the Sydney hearing room with Commissioner Ryan who is on my right, and Ms Eastman, who will be asking you some questions, Senior Counsel Assisting the Royal Commission, is also in the Sydney hearing room.  I will now ask Ms Eastman to ask some questions.

MS JENNIFER WESTACOTT, CALLED

EXAMINATION BY MS EASTMAN

MS EASTMAN:  Thank you.  You are Jennifer Westacott?

MS WESTACOTT:  That is correct, yes.

MS EASTMAN:  And, as I mentioned a moment ago, the Chief Executive Officer of the Business Council of Australia?

MS WESTACOTT:  Correct.

MS EASTMAN:  That's a role that you've held since 2011?

MS WESTACOTT:  That's correct.

 
MS EASTMAN:  Prior to that you have had a long career in both the public and private sector, and you've held senior leadership positions in both the New South Wales and Victoria Governments?

MS WESTACOTT:  That's correct.

MS EASTMAN:  You were for a time a senior partner at KPMG?

MS WESTACOTT:  Correct.

MS EASTMAN:  In addition to the work that you do with the Business Council of Australia, you are also a patron of Mental Health Australia?

MS WESTACOTT:  Correct.

MS EASTMAN:  And a co patron of Pride in Diversity?

MS WESTACOTT:  That's correct.

MS EASTMAN:  So the BCA, if I can use the shorthand expression, has provided a submission to the Royal Commission in September year.  Have you got a copy of that submission with you?

MS WESTACOTT:  Yes, I have.

MS EASTMAN:  Are there any corrections you wish to make?

MS WESTACOTT:  No, Counsel.

MS EASTMAN:  And the contents of the statement are true and correct; is that right?

MS WESTACOTT:  Correct.

MS EASTMAN:  I might ask you a few questions about the role of the Business Council of Australia.

The Royal Commission is involved in looking at people with disability in what we describe as open employment, and our focus is on how employers have responded or will respond, perhaps, to the systemic barriers we identified in our previous hearing and through the work of the Royal Commission.  One of the issues which has arisen is the role of the private sector and large Australian employers, and you may be aware that we've asked a number of the large corporations, many I think are members of the BCA, to tell us a little bit about their employment practices and also the number of employees with disability recorded in their human resources systems.

Those numbers are quite low.  When we added up together, we got to 1.15 per cent, but in many cases the large employers have in their own systems records suggesting  
that the number of people with disability in their organisations is less than 1 per cent.  So that's the background where we thought it would be helpful to hear from the Business Council of Australia.  But if I could just invite you to tell the Royal Commissioners a bit about the way in which the Business Council operates and the extent to which it represents the interests of large business and small to medium businesses, to that extent, in Australia.

MS WESTACOTT:  Thank you, Counsel.  So the Business Council was established in 1983.  It's made up of mostly the large corporate sector.  It has 136 members and that is across the entire economy.  We have, essentially, Counsel, three core roles.  The first is policy advocacy; that goes to skill, tax, regulation, the traditional things you would expect an industry organisation like us to advocate for.

The second role is what we call member services where we bring members together to give briefings on key issues, to give them access to leaders in our community, political leaders, and to run sessions of interest to them.  So, you know, particularly during the COVID pandemic and the lockdowns, we of course have been very active, assisting members with many of the public health orders.

The third role which I think is probably less well understood is what we call our community role.  And we have two principal areas there.  The first is, we run a program called Strong Australia where we try and get CEOs from across the economy into regional communities and into diverse communities to listen to people about what are their issues and the sorts of things that they would appreciate corporate Australia doing.  The second part of that is a charitable organisation we run called BizRebuild which we set up after the bushfires, the only charity in Australia that is allowed to assist business, private sector recipients.  That is effectively our role.

So it's a policy advocacy group, a member organisation, and we are trying to do what I would call coordinate the impact in the community.

MS EASTMAN:  I want to bring your attention to the issue of the employment of people with disability.

The Royal Commissioners have, and Commissioners, this is Tab 4B in Bundle A, a copy of the Business Council of Australia's report "Recognising Ability: Business and the Employment of People with Disability", that the BCA released in October 2015.  And I referred to that in making opening remarks yesterday.  So, reflecting on the six years or so that have passed since this report was released, I thought it might be helpful just to start with going back and looking at how the BCA has approached the issue of workers with disability and the findings of this report.

So the Commissioners have got a hard copy of it and I don't need to go through it in detail.  But can I understand this, that the report was really a summary of the results of a survey conducted by the BCA of its members, and the purpose was to generate baseline data, insights about disability, employment practices and the experience  
among member companies.  Was there anything, to the best of your recollection, that prompted the need for the survey at this time?  Was there something that caused that concern or had there just been an issue that the BCA felt that it needed to address when it came to the employment of people with disability?

MS WESTACOTT:  I can't remember a particular trigger, Counsel.  I think it was more the latter.  We certainly had had a long history of doing an Indigenous survey and trying to get baseline data, but also trying to establish what best practice looked like.  And we did this survey to do those two things, to get that baseline data as well as to start to identify the sorts of best practice, and then in 2016 we put out a guide for, you know, the sorts of things that people should be thinking about.

And it's always important to see which of the companies that are leading, you know, what is working, and also from an advocacy point of view we use this to say what are the sorts of things that we should be then advocating for in terms of better coordination of Government services and so on.  So that's my recollection of the trigger for doing it, but it's not uncommon for us to do surveys across our member to get that baseline.  We've done something similar on gender a few years ago where we looked at why women were not progressing through the leadership pipeline and we did some very extensive work with McKinsey on that.  So it's a very usual thing for us to do.

CHAIR:  Ms Westacott, I wonder if we can encourage you to speak more slowly.  We do have a realtime transcript and it is translated into Auslan.  I reassure you it's not the first time we have had to ask a witness to do that, but I would be grateful.

MS WESTACOTT:  Of course.

MS EASTMAN:  In this survey, 37 responses were received.  In terms of the 37 responses and looking at the composition of the BCA, that's a third of the members, and the collective workforce of the respondents was 664,000     sorry, I've got my numbers wrong.  6,600.  That's page 7 of the report.

MS WESTACOTT:  That's correct.

MS EASTMAN:  So in terms of the response, the survey findings appear at page 6?

MS WESTACOTT:  Yes.

MS EASTMAN:  And the findings set out a number of key findings.  But also there is a paragraph "What Works", and also the identification of barriers and then over the page "Drivers and Benefits".  Just looking at the key findings, so 75 per cent of the companies who responded have a plan or a strategy regarding employing people with disability, and mostly 60 per cent included that in its overall diversity strategy.  And just looking, jumping down, companies with large workforces over 20,000 people are more likely to actively seek applicants with a disability and have a dedicated role in human resources.
 

And, jumping down another one, 93 per cent of companies surveyed had a strategy to recognise and support mental health issues in the workplace.  So they were some of the key findings.

MS WESTACOTT:  That's correct.

MS EASTMAN:  Then, in terms of what works, these are going to be some issues that we are going to speak about shortly, but these are a range of initiatives to do what?  To identify increasing labour force participation?

MS WESTACOTT:  That's correct.

MS EASTMAN:  Or supporting employees while they are in employment?

MS WESTACOTT:  I think it's both, Counsel.  I think one of the things we've always been very conscious of is making sure that it's not just about getting people into jobs, it's about making sure that people are successful in employment.  So these were the sorts of bits of analysis that showed people, you know, what was working in both initial recruitment and retention and advancement.

MS EASTMAN:  And part of the purpose of this survey was to get a sense of the data, so what the numbers might be.  And against that background, do you think you've got a sort of clear sense of the labour force participation, at least in the large corporates in Australia for people with disability?

MS WESTACOTT:  I don't think we got the granular data that I think tells you how many people are being employed, what sectors are they being employed in, where have you got gaps.  Obviously this is something that the Commission is going to look into, which is this whole question of data collection.  I mean, we suspect that there is quite a lot of under reporting because people     you know, one of the things employers tell me is they are quite anxious about asking people to disclose.  So that's something we might explore this morning.

But it's very much about making sure that we get a handle on what companies are doing versus necessarily getting a lot of data about who they are employing.  But in our survey that we will be doing next year, we are going to try and get much more granular information about what are people actually doing in terms of the number of people they employ.

MS EASTMAN:  I want to ask you, because one of the factors the Royal Commission has to look at is the results that we saw yesterday of companies having less than 1 per cent, is how do they identify disability, and how do they collect that relevant data.

MS WESTACOTT:  Yes.

 
MS EASTMAN:  Just going back to what you learnt in October 2015, if you've got the document on page 14 ---

MS WESTACOTT:  Yes.

MS EASTMAN:  There is a heading at the bottom of the page which is "Identifying disability status" and 54 per cent, so about half of the companies had some method of recording the disability status about applicants or employees and then of that half, 78 per cent asked as part of an employee survey and 64 per cent asked at a recruitment stage.

So that's significant, is it not, that if half the companies have no method of recording disability status at all, then do we take it that it's just a little bit of guesswork or perhaps relying on anecdotal information as to what the numbers might be in your workplace?

MS WESTACOTT:  Yes ---

MS EASTMAN:  For disability.

MS WESTACOTT:  I think there are a couple of things to say about that, Counsel.  First of all, there are definitional issues that I think the Commission might want to look into.  So the definition is different between the ABS, it's different between the discrimination acts, it's different between the employment services.  So I think getting a common definition would be helpful.  I think certainly when I've asked employers about this, there is a bit of anxiety about asking people about whether or not that in and of itself is a breach of a discrimination provision, and so I think, again, that would be helpful.

And then I think it is about kind of setting up those systems for tracking and making sure that we are recording at the recruitment stage.  I think we've got to separate potentially asking the information at recruitment, which would also include adjustments that people need, versus then surveying the workforce.  And, of course, the whole issue about people's willingness to disclose.

So I think it's a complex area, Counsel, in terms of getting the accurate data that obviously we all need going forward to get a better baseline, but also to identify gaps and issues about where we should put more attention.

MS EASTMAN:  Over the page there is a few more results, and this says, of those participating in the survey, 65 per cent of companies do not ask ---

MS WESTACOTT:  Yes.

MS EASTMAN:  --- as part of their recruitment process whether an applicant has a disability.  Is it your view one of the reasons for that might be concern about whether you can ask that question?
 

MS WESTACOTT:  That's correct.  Certainly anecdotally that is what parties are concerned about, because they don't want to be in breach of any provision.  But of course, they do ask people if they need adjustment.  So I think it's a complex area about what is the right way to get that information at both the recruitment stage and then of course to track your employee population to make sure that we are getting that data as accurate as possible.

MS EASTMAN:  In terms of overall numbers, the paragraph that starts "Recent analysis of Australian Bureau of Statistics" suggests that the rates of employment might be as high as 9.2 per cent in the private sector and 9.4 per cent in the government sector.  Now, those are numbers that we're not seeing translating into the responses that we've received from employers.  So it raises this issue, doesn't it?  If we are going to think about strategies for improving labour force participation and also opportunities for workers with disability during the course of their careers, do we not need to start with having some clarity about what the actual numbers might be, or close to it, to start thinking about what strategies might work or not work and then what follows, how we evaluate any strategies?

MS WESTACOTT:  I couldn't agree more.  I think this is a kind of really urgent task, that we start to get the data.  And I would suggest that this should be co designed with industry as much as possible, Counsel, because quite often people ask for things, I look at it and I think there would be a much better way of collecting that information, you would get much more accuracy.

So I think my suggestion would be we need to first of all sort out definitional issues, because I think we need to be making sure that we are talking about, you know, there is a common set of definitions.

But to your point, I do think we need a national effort on data collection and reporting, and my only suggestion is that that be co designed with industry so that we're getting information that does two things.  It gives us that baseline     or three things, actually.  It gives us the baseline.  It identifies gaps and, from my perspective, we need total system change and total culture change, and we need the data to tell us about that system and culture change.

So what are the barriers, what can employers do, what kind of systems do they need supporting them in the government sector?  So I think it has got to have that level of precision.  The other thing is whether or not we are tracking people's advancement.  So one of the things that we do in other areas is we're starting to look more closely, not just are people in a job, are they in a job, are they advancing, because we want to make sure people are getting to their full potential.  So I think it has to have that level of sophistication, Counsel, so that we really drive major systemic and cultural change.

MS EASTMAN:  The report that BCA did was followed by a report from the Australian Human Rights Commission in 2016, the Willing to Work Report.  We've  
also got a document that you provided to the Royal Commission prepared by the Network on Disability on sharing and monitoring disability information in your workforce.

Commissioners, that's at tab 4A.

Just in summary, that guideline from AND addresses those issues about what questions you can ask and what information can you seek from people who might be applying for jobs with respect to disability.

MS WESTACOTT:  That's correct.

MS EASTMAN:  So can I put it this way, there is sort of nothing new on this.  It seems not much has changed.  Do you have any reflections on why there has been little or no change over the past six years or so, just looking at your own membership?

MS WESTACOTT:  I think you will find there has been change at a company level, and I know you are talking to many companies today.  I think what we haven't seen is total systems change as I talk about it, and I think that's the challenge, is how do we make sure that the entire business community, be they the large corporates or the SME sector, the government sector, are working in tandem to lift those numbers, that we are tracking that.

I think, you know, if I think about other areas and I know there are --- these comparisons have always got limitations with them, but if I think about gender reporting just by way of example, I know there are massive differences, I do think that the use of a kind of common reporting framework across the private sector in particular has given everyone a sense of baseline and data.  And if I think about other things like modern slavery reporting, it does then mean at boards, you know, start to look at those areas and obviously push harder in terms of performance and targets.

So I think your point is correct.  I think the first starting point is how do we lift the data?  There are other things obviously we have to do simultaneously, we can't do this sequentially, but I think you will find that at a company level, people have been focused on a lot of action, and what I think is missing is a system approach, if I think about gender where we've had much more of a national system approach to correcting some of the obviously very significant issues there.

MS EASTMAN:  When you are talking about a system approach, just walk me through that.  What are the elements of systems?  Are we talking law, practice, policy, attitudes, or are we talking about something a little more prescriptive in terms of regulating the way in which the corporations, for example, may collect information, report to information?

MS WESTACOTT:  I think first of all definitional, and I would encourage reporting not just across the private sector, but reporting across the public and private sector,  
and it needs to be comparable.  So I think in the first iteration of the gender reporting, if my memory serves me correctly, government was exempted originally from that reporting, and so that made it very difficult to make it comparisons and that, of course, government is 30 per cent of the economy.

So I think we need to make sure that we've got a reporting standard.  As I said, I think a really good system would have that done co designed with industry themselves.

I think what I also mean, Counsel, by system, is that there is a predictable, easy to access set of support arrangements that allow employers or make it easier for employers to retain people, to recruit people and to advance people, and that goes to a lot of the work that you know government is doing around the Disability Employment Services.

So things like how do we make sure that we have a better interface between those providers and companies, be they large or small?  How do we move to a better system of recruitment.  How do we make sure that online recruitment is sensitive to this, given that is a pervasive way of doing recruitment.  How do we make sure that we are assisting people to stay in work, and that those supports are in place?  How do we get a cultural lift across the community?  How do we get some of that training and awareness done around particularly at the middle management level?

And one of the things that we have looked at, it's not easy to do this, but I think that we need to think about more of a demand led employment model.  What I mean by that is that at the moment, you've got a system where it's opportunistic, if you will.  So a vacancy occurs, a Disability Employment Services tries to match someone to a vacancy or they try and put them into training, which may or may not be fit for purpose for the kind of work that they could do.

If we could move to a more systematised way that particularly the big recruiters, so the companies that take quite a large number of people, could identify that in advance, then we could get a much better arrangement with the Disability Employment Services then targeting the training and so on so that we can have, if you will, an intake system, a much better use of graduate programs and internships.

Then the final point I would make, Counsel, on a system level, is that --- and as you know, the Business Council has a very strong view about this --- we need to find better ways of upskilling and training people.  You know, I'm a very strong advocate of microcredentials that candidates can stack so that people can see that they've got certain capabilities.  At the moment that's a very clunky system and people can't be expected to go and do a 2 year diploma or 3 year degree.

So a system that allows an employer to say I need this person to have these capabilities, I need to be able to see the candidate's capabilities, and you are placing people.  I know it's a long answer to your question, but that is what I mean by "systems approach".
 

MS EASTMAN:  How do we also look forward in the sense that the way in which we work has changed; COVID 19 has had a very significant impact on the way in which we work, but also the design of jobs and where jobs are needed.  Pre COVID there was a lot of discussion about the gig economy, that has gone a little bit quiet, it may revive.  So the way in which we work and the way in which employers need labour is also changing.  If we have a system that's built on historically how we've brought people with disability into the workplace without thinking about what the work might be in the future, how do we ensure that we don't develop a system that really is just replicating the old and it's not responsive to the new?

MS WESTACOTT:  It's a very good point.  The first point I would make to that is that the most important resource that companies have always needed, and all businesses, but this is going to be increasingly the case, is talent.  If you're excluding a whole swathe of people from participation then you are not getting the talent, the potential, productivity, the performance.  So I think we've got to take an economic lens to this as a country.  I know there are moral and social issues and I'm not trying to diminish those any way, but I think putting an economic lens to this, and you made this point yourself, I think yesterday, Counsel, in your opening remarks in the estimate around $43 billion would be added to the economy if you could cut by a third the unemployment rate among people with disabilities.  I mean, that's a pretty substantial contribution.

So I think the first thing is to get that lens of, this is about people participating in the economy at the best they can be with the most support that is needed so that we can have a more productive economy and, of course, as part of that, a better society.  So that's the first thing.

The second thing is job design, to your point.  I think what we saw during COVID was a revolution in job design.  I mean, people designed people's jobs in 24 hours.  People digitised organisations in a couple of months.  I do think, if I'm understanding your question correctly, I do think we've got to say how do we take work to people rather than people to work and how do we make sure that we are designing jobs     this is not just for people with disabilities I might add.  This is for many people who want to spend more time with their children, people who want more flexible work.  We know, in the work we did with McKinsey a few years ago, that the biggest barrier to women's progression in the workplace was the absence of structured flexible arrangements.  So how do we start thinking about, you know, a job design that allows     that is tailored around the needs of obviously the output or the product that an organisation was, but the capability and situation of the person doing the job --- and I think COVID has given us an incredible window to turn this around now.

MS EASTMAN:  Just exploring a little bit more on this concept of job design.  Because we are going to focus on the extent to which employers, both in the public and private sector, make adjustments for workers with disability, whether it's got the adjective "reasonable" or not, or however we legally characterise that.  But if we start  
with job design, and you have a system of building, into the design of the job, adjustments and flexibility, would that approach break down this seemingly binary idea that there's the job and then there's the adjustment?

MS WESTACOTT:  Absolutely.

MS EASTMAN:  But the adjustment is always sort of seen as an add on or something different perhaps from the core terms and conditions of employment, or it might be the location of work or it might be other sort of physical barriers.  If you start with job design, do you start then to minimise this sort of weighty factor about adjustments and then work out whether they are reasonable or not, if that's a test, or whether it's unjustifiable hardship or not and that's a test?

I'm keen to just get a sense from you about how you approach job design that inherently includes people with disability rather than adds disability on as the afterthought.

MS WESTACOTT:  Absolutely spot on.  So I think the first thing about job design is what do you want the job to do?  I mean, what is the outcome or output you want the job to have?  Obviously people must start with what is the task, what are the sets of tasks.  How does this job interact with other people in the workplace.

It's also, I think, really important that it has to be co designed with the employee.  Because one thing I think we need to guard against post COVID is that we end up with whole cohorts of people who work from home and a whole cohorts of people who work in an office versus what is the right mix of working in an office or working in a workplace and working at home.  Because what you don't want is another set of biases creeping in, where the people who work from home are the people who don't get the opportunities to collaborate, they don't get the opportunities to be as visible to their employer and therefore they don't get the opportunities to progress.

Again, that's not just for people with disability.  So I think co design --- because many people want to be connected with their colleagues.  They want to be part of teams.  So I think it's that sense, counsel, of a hybrid model where people may be in the workplace X number of days, they may be in the workplace and at home other days.  But the focus has always got to be on what is the output.

And I don't want to sound too much like an economist there, but it's what do you want people to do, and what performance do you want, versus, you know, how many hours should people spend at work.  I think COVID has given us all a masterclass on that, because I think most of us have not asked people "What did you do at 9, what did you do at 9.10 and what did you do at 9.15".  They say, "Have you done that stuff I asked you to do a few weeks ago yet?"  You know what I mean?  I think that has to be about what's the outcome and the performance that we want in a job versus a very traditional approach about how we think about how work and tasks are done.

 
Finally, a job design then has to include the skill system, as we talk about in our submission.  We have to make sure there are quick and accessible ways for people to upskill, particularly in digital.  You know, if we want to be in the top five in the digital economy, typically, using Teams and Zoom is not a digital economy.  I mean, one tool, but there are other really important tools that need for us to be seriously digitally connected.

But I do think, if we could focus on job design, we would break down many of the barriers that exist for people with a disability as well as many people who are often excluded from participation and, as I said, from advancement.

MS EASTMAN:  One of the points that you make in the submission provided to the Royal Commission     Commissioners, this is behind Tab 4 in Bundle A     you describe as the economic imperative.  Do we understand by that, that if we look at what might be the projections of labour for Australia into the future to maintain levels of productivity but also to provide services across the community, is that we need to get labour force participation at higher levels --- and that's across the board, it's not only for people with disability but also for women and from other areas; is that right?

MS WESTACOTT:  Absolutely.  Like, if you look at just the current data, we need about 500,000 people back in the labour market.  That's just obviously a COVID phenomena.  But, you know, we have always had an issue about the under representation, the under participation of key parts of the community, and that just goes straight to the bottom line of the country.  I mean, that is just a straight economic gain for Australia as well as obviously a personal gain for people participating.  And it is about removing all those barriers for people to participate at the level they want to, to the potential they want to, at the time they want to.

Obviously we are guided by industrial instruments and, of course, the way certain industries have to perform.  But I don't believe it's beyond us to try and really think about this question that you've raised around job design, but to constantly frame this as an economic productivity agenda rather than, you know, something on the side, if that makes sense.  This is central to high performing organisations.

MS EASTMAN:  I referred yesterday to a report done     well, over a decade ago, by ACCI about saying we need to increase labour force participation for people with disability, because we are otherwise going to have labour shortages.  We've known for over a decade that these are the gaps.  Then what, in your experience or view, has been the impediment to actually confronting that and to shifting what seems to be a very sort of stubborn number in terms of workforce participation for people with disability?

MS WESTACOTT:  As I said earlier, Counsel, I think, you know, again we need to get better.  I just don't think we know really     I'm not suggesting we should not for a minute do a lot more here, so let me be very clear on the record that we should do a lot more here --- as a society, as a community.  But I think we obviously need to get  
a handle on that data.

The second I think is that system I talked about, and working through that, and I think a real starting point would be this review of the Disability Employment Services that is being done by the Government.  I think has just to get     and it's always disappointing we need Royal Commissions to elevate these issues, and they often report quite bad system failure, whether it's mental health, whether it's aged care.  It's always quite depressing when you sort of think why can't we kind of change these systems.  But I think we need a culture change across the community to elevate this to a much higher status, a much higher focus, and I believe that the starting point for that is the point about this is an economic story, this is a story about Australia's economic performance.  This is vital to the performance of companies, it's vital to the performance of public sector agencies, non government agencies, and get some collective effort to lift our performance but get that system approach.  Because I think what we often do is we pick off a couple of things to fix, we fix those, but then the system itself doesn't ever seem to get much better.

MS EASTMAN:  Are there any models that you are aware of or any experiences from other jurisdictions, OECD or otherwise, that are doing better than Australia that might assist the Royal Commission to consider?

Sorry, I'm springing that question on you, I hadn't asked you about that earlier.

MS WESTACOTT:  Not to my knowledge.  I mean, we certainly look at other jurisdictions and I'm happy to come back to the Commission on that, but I think that --- you know, there's a lot of companies that are members of organisations.  So I think     and many of those are looking at the performance across jurisdictions and what works in other countries.  But I might have to come back to you on that because I don't think we've really looked across these jurisdictions to say what's working.

MS EASTMAN:  The Commissioners have heard in a recent hearing about some initiatives for business on human rights protection.  So the UN Guiding Principles on Business and Human Rights.  We had a bit of a discussion about that in a recent hearing.  And one of the questions raised in a discussion about the guiding principles was a shift in the way in which companies think about risk and looking at risk in supply chains or in the mode and method of delivering services and their own employees.

So if a company shifts the thinking from the risk that the employees pose to the company's operation, to the risk that the company may pose on the human rights of people in supply chains or in their workplaces, you might start to see a sort of shift in thinking on the types of issues that we've discussed.  Systems, job design, job processes, et cetera.  So has that idea of business adopting a human rights approach or applying those guiding principles something that has made its way into the policy work of the BCA?  And if yes, do you see that that would have any relevance in starting to think about a different approach in terms of increasing labour force participation for people with disability?  I preface that by saying I'm not  
suggesting for one moment that you tick the box on the guiding principles on business and human rights and then terrific, you're there.  I mean, there's a lot of work in that model.

MS WESTACOTT:  I think "yes" is the answer.  For example, we were very strong advocates as the Business Council about modern slavery, about having a piece of legislation on modern slavery, having a reporting arrangement, trying to design that in a way that encouraged companies to go looking into their supply chains.

So I think it's an example where something that, you know, came out of a UN process and obviously the UN human rights statements, I think there are many companies, certainly the companies I represent, who have a very strong focus now on human rights as a broad issue, on their supply chains, on making sure that they're leveraging their supply chains, looking at their data.

So I think that's one lens that you could take.  But again I would marry that with the economic and participation lens, because this is good business.  This is good for making sure that we are a model country in terms of inclusion, but it's also about really, this is about getting the best people doing the best work and being their best selves at work.  And that is a good story for the performance of organisations.  But the UN approach, particularly if I think about modern slavery, Counsel, which we were very strong advocates that we needed a uniform piece of legislation and uniform reporting.  And I think certainly companies now are deeply looking at their supply chains on that.

MS EASTMAN:  The last topic I want to ask you about before the Commissioners may have some questions, is coming back to where we started, and that fear of employers asking questions that might identify people with disability in their workplaces and their own employees.  We've heard over the course of the last day or so that there is equally a great fear for people with disability to disclose they have disability.  So if that fear exists on both sides, one of the issues you've identified in your submission is the importance of good practice and cultural change.  And a number of the observations made over the last day or so is the importance of creating safe workplaces for disclosure, if that's the right word, but just really creating an inclusive workplace as the key to it.

Do you have any views on what works to build inclusive workplaces and inclusive work cultures?  And perhaps the corollary to that is: what doesn't work?

MS WESTACOTT:  If I could think of a single thing that would, I think, drive culture apart from an overarching theme around the economy, I think it's about signalling that people with a disability are welcome.  So that it's not a question of     and this goes to my earlier point about demand led solutions and tailoring the advertising and application process.  So, for example, Telstra offers services to help people with a disability lodge their application online.  So there is some good examples and I'm sure you will hear some of those today as you speak to the companies.  But I do think that it's important that we try and create, and I'm going to  
use the word "normal" as a normalisation point.  So this is not just for people with disabilities, as you know I'm a co patron of Pride in Diversity --- this has been a huge issue about people disclosing their sexual orientation.  So great work has been done in creating networks and support networks in companies.  We've got, through Pride in Diversity, a very structured award process.  Employers are “gold” and “silver”, and someone hands out those awards with Alan Joyce once a year.  People are very proud of getting those awards.  So something like that that fundamentally drives culture change.  And making sure that that's followed through all the way into the company so that obviously you need leadership, you need to signal that you want to employ people with disability, you need a different system, as I said, for how you recruit.

But then you need to make sure that you are supporting people, because what you can't have is people getting placements and then that falls apart in, you know, whatever, six months or something because none of the work has been done on supporting that team, on having a network to go to, on having, like saying in the LBGTIQA system, if I use that expression, there is a common practice amongst the employers of having allies and people, people can talk to who aren't necessarily their supervisors.

So there are many things we can do and should do.  What doesn't work, I think, is complexity.  And, I mean, none of these systems are simple, and no one is being naive about that.  But I think complexity in application processes, particularly in the digital space, complexity of job design, complexity in the service system that sits around an employer.  Particularly in the SME sector, if I don't know who to go and get assistance then I'm going to, by definition, steer away from employing people with a disability.

So I think the system not being there to support people is very problematic and I think, you know, certainly a lot of employers say that to me.  Well, I don't know where to start.  This is not the big companies but the mid size companies, "I don't know where to start".  So I think that's an issue, and this is where going back to our earlier conversation about reporting would help.  But I do think complexity is the enemy of open recruitment.  I think the more complex these systems are, the more difficult it is for people to navigate them.  Sorry, that was a long answer to your question.

MS EASTMAN:  Thank you very much.  Commissioners.

CHAIR:  Yes.  Commissioner Galbally, do you have a question?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  Thank you.  Yes, I have a couple of questions.  With the co design issue which you emphasised, and thinking about the LGBTQI  
success and shifting of that employment, would you also see people with disabilities in the co design as well as the companies?

MS WESTACOTT:  Absolutely.  Absolutely and their carers I think, Commissioner.  One thing we haven't talked about is carers this morning.  Certainly when I chaired Mental Health Australia, this was a very important issue about the co design of both consumers and carers and I think it's important, whether it's at the system level or whether it's at the job design level itself we have to have consumers and carers.

Because I think the barrier for many people is that they are caring for people with a disability or caring for people with a mental illness and we have to make sure we involve carers as well.  I think you're absolutely right, Commissioner, that that co design has to be with consumers and carers.  And my only point about designing some of these things for the employers, I think sometimes when I see things coming out of government, with no disrespect to government, you think if someone had just sat down and said, "What's the problem we are trying to fix here?"  People would have said, "A better way of getting that information would be A, B, C, D or E."  But I think it has to be a very inclusive process.  That is the way it has worked.  It has been very important in Pride in Diversity that that co design was in place.

COMMISSIONER GALBALLY:  My second question is regarding incentives but also penalties and, you know, maybe that's too big a question to ask here.  But I would be really interested in the Business Council's views in detail about incentives and penalties that could be helpful in this area?

MS WESTACOTT:  It's an excellent question, Commissioner.  On the incentives and, look, let's just take wage subsidies.  I'm pretty confident that most companies, most of the very large companies don't see the kind of opportunities getting the wage subsidy.  And I think that is the wrong way to think about it as well.  I think what you're doing with an incentive is you're levelling the playing field for the person, for the candidate.

And I think that's the way to see the wage subsidy, if we stay with wage subsidies for a minute, that you are actually giving that candidate an advantage as opposed to giving the company one.  And you are basically making them competitive, if that makes sense.  And it's really about seeing it from that prism that you're making the candidate competitive.

On the penalty side, this is a very vexed issue.  I think one of the things that we have to guard against is that you want to get culture change here.  And what we don't want is a system where people are ticking boxes and they're doing that as a kind of means of meeting a standard or something.  You really want to get companies searching into their supply chains, searching into their recruitment processes.  And so I think the balance of sort of carrot and stick has to be very carefully thought through.

I think if we start with reporting and co design that in a way we've talked about morning are morning, I think we start to get a sense of what are the areas where we  
need to step up in terms of targets or in terms of, you know, more of the stick approach.  But I do think what we want is a more fundamental system and culture change and getting that balance of carrot and sticks is very important.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Commissioner Ryan.

COMMISSIONER RYAN:  Ms Westacott, yesterday we had an excellent businessman who also had a disability come and tell us that you can't do what you can't see.  And there was a need to sort of demonstrate and basically the point he was making was until people do this, no one will see what it looks like and what he was basically saying is businesses need to take the initiative of promoting and employing with people disability on their own.  In their advertising, in their appointments to boards, in their appointments to senior office, they need to do that for people to feel welcome.  I mean, your paper doesn't exactly address what I think is what can business do without necessarily being prompted by government.  Isn't that one of the things business could do without necessarily government interfering or supporting?

MS WESTACOTT:  I agree with that, Commissioner.  And I think that was my point earlier.  If there is one thing that we can do and certainly in the Business Council's role as coordination, we will certainly step up on, is getting that sense that, you know, you are actively promoting that you want to hire people with a disability and you are making that known to people and you're actively setting those targets.

But you will hear from companies today and you will see what many individual companies are doing.  But I think across the system, you're absolutely right, we all need to really lift that sense, lift our ambition and make sure that we are actively targeting.  But that goes to my point about demand led employment.  I think that is an easier way of doing that than sort of the opportunistic recruitment.  Like absolutely actively working with those Disability Employment Services to sort of target and show that welcoming arrangement and then to my earlier point about designing the recruitment process accordingly.  So I agree with you, in short.

COMMISSIONER RYAN:  I'm not sure you've answered the bit of my question, if this is good business and it's going to give you access to good talent, why does business need government to redesign jobs?  Can't business redesign jobs in order to make sure people with disability are welcomed in?

MS WESTACOTT:  That was my point, businesses need to redesign jobs.  So much of this can be done by business, and you will hear from that today, that the issues for government are around the employment services, I think, that they need to work better with government.  But that's my whole point that we as the business community need to think about job design, we need to send that very strong message that we want to recruit people with a disability and work actively with those providers.  The job of government is making sure that the support system is in place to make that easier.
 

COMMISSIONER RYAN:  In your presentation to the Commission, there's a remark here that says that "For many companies, a focus on disability is competing with other diversity focus areas, gender balance, Indigenous engagement for resources"; what did you mean by that?  It almost suggests that this was a grudged purchase.  Is that what was intended on ---

MS WESTACOTT:  No, not at all.  Not at all.  I think that companies are actively looking at their inclusion policies and they are actively looking at all of those areas but not at all is that the case.  I think it's just that many companies are doing many things simultaneously and it's about making sure that they've got the right systems in place for categories of employees and that they are organising themselves in a kind of comprehensive inclusive policy.  That's all I'm saying, that inclusion has to be across the board.  But you are going to have to take particular bespoke actions for say Indigenous, for example.  It's a different situation.  I guess the point is it's not a one size fits all, to be overly simplifying that point.

COMMISSIONER RYAN:  Thank you, Mr Chair.

CHAIR:  Could you explain a little bit more by what you mean by co design with the business community.  Do you mean individual consultations with particular employers or is there a representative group that does it and will therefore be regarded as representing all employers or is it something else?

MS WESTACOTT:  I think it's a bit of all of that.  I mean organisations like the Business Council, organisations like ACI, the Australian Civil --- the industry bodies are a great place to come and co ordinate access to companies and then that can be a way that companies are brought together to assist with, you know, designing things say like a reporting system.  You've also got the Network on Disability, that's a very important body that could be part of this.

So I think industry bodies are one vehicle.  But sometimes we know from other parts of public policy that getting sectors of the economy, getting the actual companies in to say what is working, what's not working, that also is successful.  And making sure that     it also has to, I think Commissioner, be very much a permanent and continuous dialogue.  I think there is far too many things that they are sort of sporadic contact with the business community and then people don't sort of talk about it for another three or four years.  It has to be that constant dialogue either through industry bodies or through cohorts of companies so we are tracking what's working and what's not working and we can correct it quickly.

CHAIR:  Is what you are envisaging a system of voluntary adoption by your members of the objectives that you have so clearly set out today or are you speaking of something that would be (a) encouraged or (b) compelled by government?

MS WESTACOTT:  I think that's for governments to decide.  I think in the first instance it's important to think about voluntary systems.  They often allow problems  
to be solved without a regulatory environment over the top of them.  But it's a matter for governments to decide if they want to regulate some of these things.  For example, on the reporting front that might be open to governments.

My only constant plea to governments is to do this in tandem with industries so that we are tracking the right things and getting it right.  But, you know, we've certainly done some voluntary things like a voluntary code for paying small business more quickly.  Now there is a reporting arrangement that sits on top of that which is mandatory.  So I think you can do these things sequentially and they do help you iron out data things.  They help you sort of get systems in place.  The really crucial thing as I've said this morning, is you've got to drive culture change and you've got to drive that across the system.

CHAIR:  That leads to my next question which in a way is a variation of what Commissioner Ryan asked you.  If I may say so, without upsetting your constituency too much, there is something of a history with certain large corporations of being very good at saying what they should do and not so good at doing it and we saw that in the Financial Institutions Royal Commission.  How do you encourage voluntarily the kind of cultural change you're talking about?  It's an extraordinarily difficult thing to do, isn't it?

MS WESTACOTT:  Yes.  You know, reporting, I think, is the starting point, as we talked about this morning.  There is two ways of doing that.  You could have a voluntary reporting arrangement or you can mandate that.  And governments may say, you know, look, it is so important that we do this, we're going to mandate that.  My only comment, as I've said repeatedly this morning, is to do that when industry say we are very clear about what we are actually tracking and making it clear so people get the data that they actually want.

But I do think that refocusing this debate and and economic and participation one is a really important starting point.  Because otherwise it all does become sort of a bit     the risk I feel is that you don't get that culture change.  You don't get that big systems change.  So I think there are some things you can do.  And these systems don't have to be all of everything.  So modern slavery has mandatory reporting but it was phased in over time so people got their systems in place, they looked at their supply chains, they worked out how they could set up the systems, how they could track very complex supply chains in other jurisdictions.

And then you can sort of escalate as you go forward, particularly as you are starting to look at results and if things aren't improving.  So there are staged ways as well.  So you can start with some voluntary systems and escalate that up and target things you believe people should be doing that they're not doing that aren't working.

CHAIR:  Enlightened self interest?

MS WESTACOTT:  Absolutely.

 
CHAIR:  Adam Smith would be pleased.  All right ---

MS WESTACOTT:  I'm a disciple of Adam Smith, Chairman.  But I think it's also our national interest, if I can, you know, go back to that point.  I mean this is really about a productive participator and decent society and valuing the dignity of a job for every person in the country.

CHAIR:  Indeed it is.  Thank you very much.  It has been a most stimulating and interesting session, if I may say so.  We are very much indebted to you for the ideas that you've put forward and the explanations that you've provided.  So thank you very much for your statement and for the oral evidence you've given us today.  You've given us a good deal of food for thought.

MS WESTACOTT:  You're very welcome.  Thank you very much for your time.

THE WITNESS WITHDREW

CHAIR:  Will we adjourn now?

MS EASTMAN:  We are running behind time so if we can resume at 1.15.

CHAIR:  Yes.  We will resume at 1.15.  Thank you very much.

ADJOURNED    [12.29 PM]

RESUMED    [1.15 PM]

CHAIR:  Yes, Ms Bennett.

MS BENNETT:  Thank you, Chair.  Before we start the next session I would like to tender the documents, the statements from this morning.  If I could do that now by listing out the statements as we did yesterday afternoon.

There is first the statement of Scott Connolly dated 4 October 2021 which we propose to ascribe Exhibit number 19 6.

Similarly there is a statement of Ms Donnelly of 3 September 2021 which we propose to exhibit with the number 19 7 with the attachment as 19 7.1.

Then the statement of Jennifer Westacott of 25 October 2021 be tendered as 19 8 with the two attachments to that document being 19 8.1 and 19 8.2.

 
CHAIR:  The documents referred to by Ms Bennett will be admitted into evidence and given the exhibit numbers which she has referred which are recorded in a document for convenience.  Thank you.

EXHIBIT #19 6   STATEMENT OF MR MICHAEL CONNOLLY DATED 4 OCTOBER 2021

EXHIBIT #19 7   STATEMENT OF MS MELISSA DONNELLY 11.1.1 DATED 3 SEPTEMBER 2021

EXHIBIT #19 7.1   ANNEXURE TO STATEMENT OF MS MELISSA DONNELLY

EXHIBIT #19 8   STATEMENT OF MS JENNIFER WESTACOTT DATED 25 OCTOBER 2021

EXHIBITS #19 8.1 TO #19 8.2   ANNEXURES TO STATEMENT OF MS JENNIFER WESTACOTT

MS BENNETT:  Thank you, Chair.

Commissioners, we now change direction a little bit and go from what the law and experience of people with disability is, and we turn now to the barriers that people with disability can face from the perspective of the employers.  To that end, Commissioners, we have representatives of each Kmart, Woolworths and Compass.  I just pause there, Chair; I understand there are representatives of those organisations that would like to announce an appearance.  I pause if the Chair is minded to receive those appearances now.

CHAIR:  Yes, thank you.

If there are appearances, please do announce them now.  Perhaps starting with Kmart.

MR WOODS:  If the Commission pleases, my name is Woods and I appear on behalf of Kmart Australia Limited.

CHAIR:  Thank you, Mr Woods.  Then Woolworths?

MR WOODBURY:  Yes, may it please the Commission.  Stephen Woodbury on behalf of Ms Pelunsky and Woolworths Group Limited from Ashurst.
 

CHAIR:  Yes, thank you.

Finally, from Compass Group.  Is there a representative from Compass Group?

MS BENNETT:  I'm told there is no appearance from the Compass Group.

CHAIR:  Very good.  Thank you.

MS CARMEL PELUNSKY, CALLED

MR TRISTRAM GRAY, CALLED

MS VANESSA MARTIN, CALLED

EXAMINATION BY MS BENNETT

MS BENNETT:  I will start by asking the members of this morning's panel to identify themselves and their role.  I will briefly explain the direction of this panel.

First, Ms Pelunsky from Woolworths, can you please identify yourself and tell the Commissioners your name and role?

MS PELUNSKY:   Good afternoon, Carmel Pelunsky from Woolworths Group Limited, Director, Talent & People Capability Practice.

MS BENNETT:  Thank you.  Mr Gray from Kmart, could you identify yourself and tell the Commissioners your role?

MR GRAY:   Thank you.  My name is Tristram Gray and I'm the Chief People & Capability Officer from Kmart Group.

MS BENNETT:  Ms Martin, could you identify yourself to the Commissioners and tell them your role?

MS MARTIN:   Vanessa Martin, and I am the National General Manager for Diversity and Inclusion for Compass Group Australia.

MS BENNETT:  Ms Pelunsky, you've provided a statement to this Commission of 15 June 2021, is that right?

 
MS PELUNSKY:   Yes.

MS BENNETT:  Commissioners will find that at folder B1 tab 18.

Ms Pelunsky, are the contents of that statement true and correct?

MS PELUNSKY:   There have been some changes subsequent to that which I can note through questions.  For example, the Endeavour Group is now a separate part of the Woolworths Group.

MS BENNETT:  I see.  Have those corrections been provided separately, do you know, to the Solicitors Assisting?

MS PELUNSKY:   No.

MS BENNETT:  Perhaps we might ask those lawyers working with you to provide those to the Solicitors Assisting, and we will come back and ask you to affirm your statement with those corrections in due course this afternoon, if that's convenient.

CHAIR:  Endeavour is now an entirely separate company, isn't it?

MS PELUNSKY:   Correct.  It impacts the number of people with disability that were stated in our original statement.

CHAIR:  When you are appearing today, you are not actually representing Endeavour?

MS PELUNSKY:   No.  Correct.

MS BENNETT:  Mr Gray, there are two statements from you.  The first is dated 18 June 2021 and a supplementary statement of 29 October 2021.  Have you read both of those statements, Mr Gray?

MR GRAY:   I have.

MS BENNETT:  When read together, are those statements true and correct?

MR GRAY:   They are true and correct.

MS BENNETT:  Commissioners, you will find those in Folder B, Tabs 32 and 45 respectively.

CHAIR: Yes, thank you.

MS BENNETT:  Ms Martin, turning to you, you have made a statement of 15 June 2021 which the Commissioners will find at Folder B, Tab 8.  Is that right?

 
MS MARTIN:   That's correct, yes.

MS BENNETT:  Are the contents of your statement true and correct?

MS MARTIN:   Yes, that's correct.

MS BENNETT:  Thank you, Ms Martin.

Commissioners, in Public Hearing 9 there was evidence given about the barriers faced by people with disability trying to get their first step on the ladder to employment in the course of being recruited into an organisation, and then recruited into positions more senior within that organisation.  So, for this hearing, the Royal Commission asked various public and private sector employers about their recruitment practices, and to identify how each addressed those barriers that faced people with a disability.

Kmart, Woolworths and Compass are all companies with a large workforce, a range of qualifications, requirements and they operate across a broad number of sites in Australia, and so we are interested to speak to them today about the way in which they go about recruiting people across their organisations and across Australia.

With that introduction, can I turn first to Mr Gray of Kmart.  Is it right that Kmart employs around 42,364 people?  Is that about right so far as you know, Mr Gray?

MR GRAY:   Correct.

MS BENNETT:  Yes.  Your HR systems record about half a per cent of that number have a disability; is that right?

MR GRAY:  No, that's not quite correct.  What we record today is 671 team members who have some form of disability.  That's outlined in point 7 of my supplementary statement on 29 October 2021, which is roughly 1.58 per cent of our employment.

MS BENNETT:  Is that an area you want to see the rate improve of people with disability in your organisation?

MR GRAY:   Yes, it is, and indeed, what we've seen since we've upgraded our HR systems aimed at a centralised recruitment approach in July this year, we've seen, in fact, now that we are recording those applications where people identify, because we provided the opportunity for applicants to identify whether they have a disability, or indeed may need an adjustment to help them work in our organisation, we've seen 3.8 per cent of those applicants and new hires identifying with a disability.  So we are pleased to see that but of course, our view as a large employer is we always have more to do in this area.  So, yes, I would agree with you that we would like to see an increase in people with disability working within our business into the future.

 
MS BENNETT:  You would accept that historically, the rates of employment of disability by your organisation haven't been good enough, have they?

MR GRAY:  What I would say is that we did not collect that data in a way that would enable us to identify the actual population within our workforce or demographic that did identify people with a disability because we didn't ask people to identify whether they had a disability.  We only became aware of that if they requested a workplace adjustment or, secondly, were part of a formal Disability Employment Program.  So that would be my view on that question.

MS BENNETT:  So you don't know if you had enough representation of people with disability in the past; is that fair?

MR GRAY:   I don't think there is anything to suggest that our level of disability would have been any less than we are seeing now with the system that collects that data.  However, I don't have any factual data that I could present to you to say it was at a certain level because we never collected that data in the past.

MS BENNETT:  Yes.  Ms Martin, can I understand from you, you employ about 10,236 people, and your HR system records under 10 per cent of those people having a disability.  Is that right?

MS MARTIN:   That's correct.

MS BENNETT:  Is that consistent with the level that Compass would like to see?

MS MARTIN:   No, we would like to see more.  What we have seen, as I provided in my statement, over the last 10 years we've had, through Disability Employment Service providers and also existing staff stepping forward, that we've run quite a significant campaign to encourage inclusivity in the workplace, and we've had a lot more people choosing to identify as living with a disability.  So we've upgraded what we call our payroll system, which is Pay Global, to be able to capture that information.  We are sure that we probably even have more in the business, but we give people an alternative, to make a personal choice in the way they choose to publicly identify or not.

MS BENNETT:  Turning to Ms Pelunsky at Woolworths, you employ around 200,000 staff; is that right?

MS PELUNSKY:   Yes.

MS BENNETT:  Your HR systems record around 1 per cent as having a disability; is that right?

MS PELUNSKY:   Yes, that's correct.

MS BENNETT:  Do you see that as being a level that is good enough?
 

MS PELUNSKY:   We would absolutely want more people with a disability to declare their disability.  In an engagement survey that we run where people could declare their disability, we actually had a larger number of people and it was about 1.5 per cent of our workforce who declared a disability.  But even so, we would want it to be more than that.  I think the complexity comes from self identification as well as visible and non visible disability.  But absolutely, we would want to do more, we would want a larger percentage.

MS BENNETT:  I want to be clear about the position of each of you, just so that I understand the position.  Is it the position, starting with you, Ms Pelunsky, that you believe that there are people with a disability working for your organisation at an acceptable level but you simply haven't counted them or is it the case you accept you haven't hired enough people with a disability?

MS PELUNSKY:   I would say it's both.  So I think part of the complexity of disability and given it's sometimes visible and sometimes not, sometimes people, two people with the same disability, some may see it as a disability, some may not.  And so it's a more complex issue than simply recording numbers.  That said, we would like to remove barriers to employment and hire more people with disability.

MS BENNETT:  Perhaps I should put that another way.

Mr Gray, would you accept that Kmart has had in place --- people with disability have faced barriers in accessing employment in the past?

CHAIR:  Do you mean at Kmart?

MS BENNETT:  At Kmart, yes.

MR GRAY:   My view would be that I'm sure there have been some people with disability who would have faced difficulty.  Accessing, for example, material to apply or the functionality in some of our systems to apply for roles, which is why we've been making changes in those areas to enable greater accessibility.  So yes, I would accept in the past that there no doubt would have been people who have had difficulty accessing roles, but we are doing everything we can as we are moving forward now to address those issues.

MS BENNETT:  I will unpack some of those steps you've been taking shortly.

Ms Martin, can you respond to that question?  Do you accept people with disability in the past have faced barriers in accessing employment with the Compass Group?

MS MARTIN:   I would say definitely, and a lot of that is based on accessibility of systems and our recruitment processes.  I outlined in my statement that given the number of people that we have applying for, you know, the various vacancies we have from one end of the country, it is electronic, and sometimes that can be a barrier  
in itself.  So, again, we've been working with our systems processes, recruiters, and trying to set in a whole range of different processes and initiatives to break down those barriers so it's more accessible for people with disability.

MS BENNETT:  All right.  I would like to return to those and the use of, I think you referred to a low level AI, and I would like to discuss how that interacts with people with disability accessing employment with you.  Before I do that, I just want to make sure that I have identified the correct policies and procedures.

Mr Gray, is it right that you've recently changed most of the policies and procedures that relate to recruitment of people with a disability?  Mr Gray, you are still on mute.

MR GRAY:   Apologies.  Yes, I would say in terms of recruitment we've changed our recruitment approach to a centralised approach.  Previously we had a decentralised approach which didn't allow us to track and be consistent in our approach to not only adverts or applications relating to people with disability but the broader community as a whole.

Secondly, we've implemented a new HR information system which enables us to untrack this information, but also importantly to allow applicants to self identify at the application stage and, conversely, existing team members to retrospectively self identify should they wish to do so.

MS BENNETT:  All right.

Ms Pelunsky, just turning to you, as I understand it, Woolworths doesn't presently have policies around disability recruitment.  Is that right?

MS PELUNSKY:   That is correct.

MS BENNETT:  You have a plan to commence the process to create such a policy in the financial year of 2022 which would be no earlier than July next year.  Is that right?

MS PELUNSKY:   Yes.  Well, there are two parts to that.  In terms of the accessibility action plan, that is the piece that is being commenced and will take us 12 to 18 months to formally launch and publish.  In terms of the workplace adjustment policy, we have committed to getting that done by July next year.

MS BENNETT:  This follows a review that was done by the Australian Disability Network in 2017 that identified a range of deficiencies in your processes; isn't that right?

MS PELUNSKY:   That's right.

MS BENNETT:  Can you explain to the Commission how an employer of your size has that information for four years, and will be five, before any action is taken about  
it?

MS PELUNSKY:   Yes.  Look, I think there are a number of factors that contribute to that.  First off I would say we have implemented many of the recommendations, so just to give a few examples, we do now have ---

MS BENNETT:  I'm going to pause there.  I'm just really keen, with the limited time that we have, just to focus in on the specific question that I have, which is a policy around the recruitment of people with a disability is something that was flagged for Woolworths in 2017 as an area of deficiency.  Isn't that right?

MS PELUNSKY:   Yes, it was.

MS BENNETT:  That was by an organisation you engaged specifically to tell you about that; isn't that right?

MS PELUNSKY:   Yes.

MS BENNETT:  They told you that and you've known since at least that time of the barriers that they identified for you.  That's your ---

CHAIR:  By "you", you mean Woolworths?  Because I don't think that Ms Pelunsky has been there that ---

MS BENNETT:  Thank you, Chair.  By Woolworths.

MS PELUNSKY:   Yes.

MS BENNETT:  What I'm trying to assist the Commission to understand is     let me go back.  You accept that Woolworths, as an employer of the size that it is, carries additional responsibilities to the Australian community more broadly?  You would accept that?

MS PELUNSKY:   Absolutely.

MS BENNETT:  That would include Australians with disability, doesn't it?

MS PELUNSKY:   Yes.  Yes.

MS BENNETT:  How is it, in that context, that four years after being told of these specific deficiencies, you've not yet taken any step and you don't plan to take any steps for a number of months to rectify that deficiency?

MS PELUNSKY:   I think we have taken steps.  I think we now have a statement on our career website that specifically says "We employ people with disability", and the answer is yes, and we absolutely encourage people with disability to apply.  And I think we've taken a range of other steps that have created and are part of creating a  
generally inclusive culture.  I recognise, you know, I won't go into all of those right now, but I would say that's part of what we've done is start implementing part of the recommendations, we haven't got to  ---

CHAIR:  I think you were asked about a specific recommendation, so I wonder if you would direct your attention to the question that counsel asked and respond to that.  If you wish, Ms Bennett will repeat the question.

MS PELUNSKY:   Sure.  We do not have at this stage a specific recruitment policy for people with disability.

MS BENNETT:  And can I take it from your answer that nor do you have a proper explanation for why there is no such policy?

MS PELUNSKY:   I feel like I'm trying to give context to that, and I appreciate you want a concise answer, so I'm trying to explain the complexity of the large scale, the COVID context where we've had to work on some things, and the way in which we are trying to create a number of steps to encourage people with disability to apply.

So while I recognise there is not a policy around employing people with disability, I would say that nonetheless Woolworths has taken a number of steps to encourage people and to remove barriers.  So I say both not true.

CHAIR:  Have the steps worked?

MS PELUNSKY:   We have shown that since 2016 the number of people with disability who have worked at Woolworths is increasing, so we would believe that it is working, and we would say there is more to do.

CHAIR:  Increased from what to what?

MS PELUNSKY:   I can say that at the moment it's 1 per cent, and prior to 2016 we weren't measuring it.  I don't have the exact increase.

MS BENNETT:  I will just read from your statement to see if this is accurate.  You say:

Internal data shows that history ---

CHAIR:  Where are we, sorry?

MS BENNETT:  Sorry, the response to question 4 on page 4.

CHAIR:  Yes, thank you.

MS BENNETT:

 
Internal data shows that since 2016 the employment of people who self identify as people having a disability has increased at Woolworths and now formally represents about 1 per cent of our team.

Is that right?

MS PELUNSKY:   Yes.

MS BENNETT:  While we are at your statement, can I also verify --- you referred earlier to a statement that you now include for potential candidates.  Is that the statement that we find extracted under question 9 at the bottom of paginated ---

CHAIR:  Take the numbers at the top right hand corner.

MS BENNETT:  0007, the number at the top.

CHAIR:  Just regard that as page 7.

MS BENNETT:  Page 7, "Do you employ people with a disability?" and then it says:

Yes.  Woolworths Limited encourages and supports .....

MS PELUNSKY:   Yes.

MS BENNETT:  I have one question about that while we're there.  It says:

If you have a disability or work for an agency representing a potential employ we with disability please specify this in your application.

Why do you ask people to specify their disability in the application?

MS PELUNSKY:   It would help us to ensure a better recruitment process and/or onboarding process should they need any adjustments.

MS BENNETT:  You don't otherwise identify the availability of adjustments as part of that process, do you?

MS PELUNSKY:   No, not at this stage, but through our accessibility action plan we plan to address that.

MS BENNETT:  I see.

Ms Martin, turning to you, you've identified some 14 policies that you've told us are concerned of the employment of people with disability.  I just want to ask you, are the two key documents, from a recruitment perspective, and I would like to be clear that I accept that they are all relevant to an extent, but are the key documents the "Hiring Manager Essentials Pre course" and the "Hiring Manager Essential Training Comp 
anion Guide", are they the two key documents for recruitment?

MS MARTIN:  They are for recruitment managers and recruiters to deal with things like unconscious bias, but needing to make necessary adjustment if someone steps forward and identifies that they have some form of disability they are living with.  So we modify our recruitment practice to incorporate any adjustments we need.  But, you know     sorry.

MS BENNETT:  No, please, go on.

MS MARTIN:   Critically we have a disability participation policy, and we do have a workplace adjustments policy that we use along with those.  So there's a suite of tools that our recruiters and managers can use when we are both identifying and onboarding people with disability into the workplace and the recruitment process.

MS BENNETT:  Is that workplace adjustments policy --- that's a 2020 document that is annexed to your statement and it's document CGA.9999.0001.0088?

MS MARTIN:   Yes.

MS BENNETT:  Yes.  While we are talking about that document, that's a document that is relevant to the recruitment phase of a person entering the Compass Group can be?

MS MARTIN:   It can be, yes.  And what happens is, as I mentioned in my statement, we have an electronic onboarding application process.  What we do is we encourage applicants to identify at that front end, whether they need any adjustments to our recruitment process.  So normally you would go on, you would lodge your application electronically.  We do give scope in there for people to do a video interview as well.  That is pre screened by a recruiter at the other end.

MS BENNETT:  I'm sorry to interrupt you.  I had a very quick question about that document.  Do you have that document in front of you?

MS MARTIN:   Yes, I do.

MS BENNETT:  Could you just go to the second page of that document, and after the three dot points under the heading "communicating the procedure".  I don't need that to be brought up on screen, I will read it out, it's a short sentence:

Interviewing managers and recruiters use their initiative to ask only successful candidates whether they need workplace adjustments.

Is that consistent with the way that is meant to work?

MS MARTIN:   So sometimes it needs to happen at the front end.

 
MS BENNETT:  It would need to happen at the front end, wouldn't it?

MS MARTIN:   Yes, but this is referring directly to once they have been offered employment, and they are going into the workplace, whether they need any workplace adjustments, to say it upfront.  But when we're doing the recruitment process and the training packs for recruiters that you mentioned before at the beginning of your questions, we also ask them there whether they need some adjustments.  So it's hit on a variety of different fronts even though the wording on this could be better reflected.

MS BENNETT:  Yes.

MS MARTIN:   To be captured.

MS BENNETT:  You said that could be better expressed, is that it?

MS MARTIN:   Yes.

MS BENNETT:  And that's a document that perhaps     I understood your evidence to be that was a document relevant to the recruitment stage, but   

MS MARTIN:   Yes.

MS BENNETT:  --- perhaps it's less relevant to that stage and  more relevant to after a person has been employed.  Is that right?

MS MARTIN:   Yes.  Yes.

MS BENNETT:  Okay.  I would like now just to track a person, a candidate's journey to become an employee of your organisation.  So I'm going to start with the way in which someone knocks on the door, if I can put it that way.  I just want to understand the way that happens for each of your organisations very briefly, if that's okay.

First of all, Mr Gray, you've said that until recently you had a decentralised recruitment model.  Does that require a CV being dropped off at the store for the attention of the store manager which is then considered by that person?

MR GRAY:  In simple terms, correct, that that was the way, correct.

MS BENNETT:  For head office roles, if I can put it that way, HR that was a more centralised HR governance process?

MR GRAY:   Yes, an online process, the majority.

MS BENNETT:  Is it fair that graduate recruitment was the third process again?

MR GRAY:   Yes, that's correct.
 

MS BENNETT:  Your statement tells us that under that decentralised model, there was no set content for an advertisement for a job at Kmart, and that in consequence there was no requirement to advertise or to make express the availability of adjustments; is that right?

MR GRAY:  Historically, prior to this year, that was the case.  It was a more generic statement that related and reflected our approach and philosophy to diversity, inclusion and wanting to represent the communities in which we worked, including people with a disability.  But it did not, as you quite rightly point out, reflect anything specifically in relation to adjustments.

MS BENNETT:  But there was nothing about the decentralised nature of the model that made it difficult or impossible for Kmart to include that statement, was it?

MR GRAY:   No, I think that's correct.  It's probably reflective of the journey we've been on for the last few years because that has now been incorporated into the way we now recruit and the statements we make in our application process.  So we are learning all the time and we accept that we need to continue to learn and we need to do more, but I would suggest it's a result of progression in this area that we're making that we've now adopted.

MS BENNETT:  Are you satisfied that now you've got the necessary statements in your advertisements in that centralised model?

MR GRAY:   I'm satisfied we do.  I believe, however, we do have more work to do to make sure they are used consistently, so in that transition phase at the moment because we have implemented this new system in July this year, so we are in the process of removing the old and replacing it with the new as we advertise roles.  So we are in transition but, yes, I'm confident we've got the pillars and the architecture and the statements correct now.  Part of that was ---

MS BENNETT:  Who is accountable for that, Mr Gray?

MR GRAY:   There are two areas that account to that.  One is our recruitment function, and the second is our head of disability inclusion, and they are working together on that.

MS BENNETT:  I'm sorry, was the first one a job title?

MR GRAY:   No, sorry, I guess at the end of the day our head of recruitment who reports to me, so I guess.   At the end of the day it's me.

MS BENNETT:  Yes.

MR GRAY:   There are two people who work for me.  One takes care of recruitment across the company, and the other takes care of diversity inclusion.  Those two are  
charged with bringing that together under my accountability.

MS BENNETT:  I don't mean to put you on the spot, but are you the person who is accountable for delivering what you are saying will be delivered?

MR GRAY:   Yes, absolutely.

MS BENNETT:  So if the Royal Commission were to return in a year, you are satisfied --- and ask you these questions again, you would be satisfied that they would be as you would want them to be?

MR GRAY:   Absolutely.

CHAIR:  You are based in Perth; is that correct?

MR GRAY:  No, I'm based in Melbourne, Commissioner.

CHAIR:  Based in Melbourne?  Your address is given as Wesfarmers Perth, but that's not where you are based?

MR GRAY:   That's not where I'm based.  That's because Wesfarmers is the overarching --- the company that owns ---

CHAIR:  I understand that, that's why I asked.  All right.  Thank you.

MS BENNETT:  All right.

Ms Pelunsky, turning to you again, I would like to just understand     sorry, Mr Gray, before I leave you, I want to understand, under the current model how does somebody lodge an application with Kmart?

MR GRAY:  Multiple ways and multiple options to do that.  They can apply directly online.  They can visit a store and they would be able to use a QR code to then apply through the store.  Or they may submit an unsolicited CV through to our Kmart Careers website as well.

MS BENNETT:  With the online application does the person need to create a profile and go through a number of steps?

MR GRAY:  Yes, that's correct.

MS BENNETT:  Has that been assessed from an accessibility perspective?

MR GRAY:  Yes, we have, in fact, it's called an applicant tracking system, ATS.  We've made a number of changes in putting that system in as we centralised.  So a couple of those examples I can give you would be in relation to dyslexia font.  So that helps applicants who may be affected by dyslexia read our documents more  
easily and be able to input material into the system.  Second is keyboard navigation, which has focus indicators to guide the applicant through the platform if they have difficulty seeing those.  Third would be high contrast colours which make it easier for those applicants who may have low vision or are vision impaired to see the material.  And the last feature we are doing is we are developing a mobile app now to enable people to apply on any device from anywhere, and that content will be compliant with the web content accessibility guidelines.  We expect that to be available in 2022.

MS BENNETT:  All right.  Now, Ms Pelunsky, can I ask you about the process for applying at a job for Woolworths.  Just to be clear, I'm excluding from this the graduate recruitment stream and I would like to focus on your largest employee pool which, I take it, is your store staff.  Is that right?

MS PELUNSKY:   Yes.

MS BENNETT:  I think you tell us in your statement that applicants need to create an online profile to complete a job application.  Is that right?

MS PELUNSKY:   That's one way they can come in.  Yes.

MS BENNETT:  What are the other ways in?

MS PELUNSKY:   We work with a range of DES providers who ---

MS BENNETT:  I'm sorry to interrupt you.  I am going to just leave the DES recruitment model for now, that is the subject of another hearing.  So I will just stick with what I think is called in your statement the mainstream recruitment model.  And so in that context, how does an applicant identify themselves to you?

MS PELUNSKY:   So they would apply either online or if there was a referral, they would be able to submit a CV in person to the person they knew.

MS BENNETT:  So with the online application, the person needs to create a profile before they can submit an application; is that right?

MS PELUNSKY:   Yes.

MS BENNETT:  Again, my question for you, Ms Pelunsky, is has that been tested from a disability accessibility perspective?

MS PELUNSKY:   I think that is part of what we need to do as we continue to improve the accessibility.  I think that's absolutely right.

MS BENNETT:  So that hasn't happened yet?

MS PELUNSKY:   No.
 

MS BENNETT:  Once a person has submitted an application, has created a profile and submitted the application, where does it go from there?

MS PELUNSKY:   We also have an ATS, so it gets allocated to various recruiters.  We have a team that specifically recruits for our stores.

MS BENNETT:  You used an acronym there that I wasn't familiar with.

MS PELUNSKY:   Sorry, it's the applicant tracking system, the same one Mr Gray referred to.

MS BENNETT:  Does the application go to a third party for automatic assessment?

MS PELUNSKY:   Not to my knowledge.

MS BENNETT:  What is the role of the recruitment agency?

MS PELUNSKY:   It's a system called Success Factors, that's the applicant tracking system but that's held within Woolworths.

MS BENNETT:  I see.  Then how does that application get assessed within Woolworths?

MS PELUNSKY:   Through the recruiters.  So there's a team of store recruiters who would look at those online applications and make judgments about what to progress or not.

MS BENNETT:  And they are employees of Woolworths who are based in particular stores, or are they centrally part of your HR group?

MS PELUNSKY:   They are part of the HR group.

MS BENNETT:  You don't use any artificial intelligence screening process as part of your recruitment?

MS PELUNSKY:   We have two separate ones that are being piloted at the moment, but none in the mainstream recruitment at this stage.

MS BENNETT:  Yes.  Are they part of your recruitment process at the moment?

MS PELUNSKY:   They are as a pilot.  I think for Christmas recruitment.  I can check that.

MS BENNETT:  I see.  So at the moment for mainstream store recruit minute there is an application online that is considered by HR staff.  Are they centrally located?

 
MS PELUNSKY:   Yes.  Yes.  Brisbane.

MS BENNETT:  Brisbane.  I see.  And then another option is someone drops off a CV if they have a referral, and how does one get a referral?

MS PELUNSKY:   If they know someone or if they go to a store and they want to ask     I'm talking about I guess not online.  There is always the opportunity for someone to walk into a store and say "I would like to speak to the manager or the assistant manager, or "I know someone who works here", and some recruitment happens that way as well.

MS BENNETT:  I'm interested in that referral piece.  Is it okay to just walk in off the street to hand in your CV?

MS PELUNSKY:   In the store, yes.

MS BENNETT:  The third stream is once you've applied online, there will be --- for some Christmas casual positions it seems there is an artificial intelligence process that screens some people, is that right?

MS PELUNSKY:   There is a pilot that we are using through the Christmas recruitment process.

MS BENNETT:  Is part of that pilot whether the algorithm being applied by that artificial intelligence is sensitive to issues that might arise for people with disability?

MS PELUNSKY:   Yes, I think one of the factors we want to consider is inclusion broadly, so disability but as well as, you know, does it provide fair access to people from First Nations, LGBTQ+, women, female talent, et cetera.  So I think we are applying a broad lens to a degree to which through the pilot it demonstrates that it's the right system for us.

MS BENNETT:  Is that something that you will factor into your assessment of that system going forward?

MS PELUNSKY:   Absolutely.

MS BENNETT:  So again, if we come back to you in a year we will be able to discuss with you the way in which that has been factored in?

MS PELUNSKY:   Absolutely.

MS BENNETT:  Thank you.

Turning to Ms Martin, can you tell us about the way that you tell people that there are jobs available with Compass? You tell us in your statement that you don't advertise the availability of adjustments for applicants; is that right?
 

MS MARTIN:   Yes, we don't put that on the advert, but we do have an inclusive statement on our job adverts that encourage people to apply.

MS BENNETT:  Is it a matter of concern that people might not apply because they think there aren't adjustments available?

MS MARTIN:  We try and use, I guess, three different mechanisms.  One is we can take a direct referral where somebody walks in off the street, hands us a CV, tells us about themselves and wants to apply for any vacancies with us.  So that is number one.

Number two is they could go online through our electronic portal and do this electronic application process which does have a low level AI part to screenings applications.  What happens is you also do a video interview of yourself as well and lodge it, and our recruiter at the other endf will analyse that and come back to you.  And if you identify yourself as living with a disability, they will make direct contact with you and ask you what type of adjustments that you would need to be onboarded or come through our recruitment process.

MS BENNETT:  I'm sorry, my question was a little bit narrower than that.  My question is, do you have any concern that by not mentioning the availability of adjustments, people might think they are not available?

MS MARTIN:   That could possibly happen, yes.  I'm not sure because I haven't got any trending on it but I would imagine that would be the case.

MS BENNETT:  Yes.  You say in your statement at paragraph 10 that the physical inherent requirements are specified when required specifically for a role.  Who identifies what those inherent requirements are?

MS MARTIN:   So we have many contracts with many clients and particularly a large portion of our operations sit in the mining and resource sector, and people need to do medicals and, you know, there are physical requirements associated with various roles.  And so whatever the vacancy is, and if it's relevant to that, it would specify that upfront.

MS BENNETT:  This would be a good moment, Ms Martin, for me to clarify the nature of Compass's business.  As I understand it's not a labour hire business but you do provide staff to other entities.  Can you explain your model?

MS MARTIN:   We have multiple business sector brands and they have different, what would I call it, almost like badging or marketing attached to them.  We would do everything from offshore floatels and platforms out in the East Timor Sea with ConocoPhillips, right through to running a small cafe at a university.  So there are things like aged care, hospitals, mining sector villages with various clients, floatels, platforms I mentioned before, private schools.  So there's a raft of different contracts  
and different roles attached to those contracts.

MS BENNETT:  Just to clarify, if a school needs cafeteria staff, staff who are employed by Compass will enter the school and provide those services in the school?

MS MARTIN:   Yes.

MS BENNETT:  They continue to be employed by you?

MS MARTIN: Yes.

MS BENNETT:  The reason the inherent requirements are sometimes identified by the client, if I can put it that way, is because they are the ultimate recipients of the service, is that right?

MS MARTIN:   That’s true, and sometimes, depending on the nature of the contract and type of service that we are delivering, many of our clients have very rigorous safety requirements that they would want us to adhere to with our staff.

MS BENNETT:  Does Compass apply an independent mind to the appropriateness of those requirements, those inherent obligations?  Or does it just accept them from their client?

MS MARTIN:   We accept them from our client and many of them have gone through some very rigorous health and safety processes to determine what they are.  Yes.

MS BENNETT:  I'm not sure I understand the answer to my question.  Does Compass apply an independent mind to whether or not the things identified by the client are actually inherent requirements for the role?

MS MARTIN:   Not that I'm aware of.  I would need to check that.  Some contracts might be different.

MS BENNETT:  Thank you.

CHAIR:  Compass's policies then would be very heavily affected by the perceptions of your clients as to what the requirements of a particular job might be?

MS MARTIN:   It can be.  But then we also, as the primary employer, would have some requirements around what we need employment wise and physically from our staff as well to conduct different roles and functions in different positions.  So it would be a combination of both.

CHAIR:  I infer, and tell me if I'm wrong, but your reference to the stringent health and safety requirements of your customers often translate into the unsuitability of people with disability to be sent to a client to perform the work they have in mind?
 

MS MARTIN:   It can; if the nature of the disability doesn't match the role and function, there could be an issue there.  If it was somebody, for example, what would I give an example of? That might have some type of physical disability that impacts on a safety issue.  An example I'm trying to think of might be related to sight.  If you are visually impaired and you would need to go to a particular remote mining operation and there could be a variety of different hazards in that workplace, that may be an issue that our client, if you don't meet a safety requirement to be there, would say they wouldn't grant access to that site or that operation to work in that particular role if that's going to impact on the safety issue.

CHAIR:  Do you take the assessment of the client as to whether the disability will have an impact upon the safety requirement?

MS MARTIN:   No, because what we do is we're aware of the innate risk issues for different roles, and we have a system internally called Compass Care which work with our recruitment staff around the nature of different roles and different operations in different contracts in the inherent requirements of a role.  So we have that internally when we're onboarding somebody and they might need to go through a medical or a fitness examination to meet the inherent requirements of a position, we do all of that internally, and we have a number of what you would call ‘health and safety employees’ that work with Compass Care who would make sure that we're not setting somebody up for failure into a role that could create some physical hazards or problems for them.

CHAIR:  Thank you.

MS BENNETT:  As the employer, you are aware that you have obligations yourself under the Disability Discrimination Act and otherwise?

MS MARTIN:   Yes.

MS BENNETT:  Not to discriminate on the basis of disability.

MS MARTIN:   Yes.

MS BENNETT:  So you would need to, wouldn't you, yourself consider whether there would be any limitations or any inherent requirements applied as a filter, yourself, wouldn't you?

MS MARTIN:   Yes.  Yes.

MS BENNETT:  --- (overspeaking) --- you do that?

MS MARTIN:   Yes, we're aware --- I mentioned at the front end that there is three different mechanisms that somebody with a disability could present to us proactively looking for employment, so it could be through a portal, it could be direct or it could  
be through a Disability Employment Service provider.  We do a lot of work upfront with the candidate around overcoming those barriers, so we have upfront a number of people that do work in our resource sector space and with our different clients who identify as having some form of disability.  We've got a whole raft of different examples of those disabilities, and we don't see it as a barrier.  But what we want to do, and it's a part of making employment effective, is to make sure that we're not setting people up for failure or putting them in a situation that could be hazardous.  So it's about that negotiation at the front end on the job match and the role for the person involved.

MS BENNETT:  All right.  We might return to that if we have time.  I would like to turn for a moment to attitudes in recruitment.

Now, this Commission has heard evidence this week about what we talk about as unconscious bias or attitudes that can present a barrier for people with a disability.  So I would like to ask a few questions around that topic.

Now, Mr Gray, you provided the Royal Commission with a disability recruitment resource pack.  It's at Bundle B, Tab 43 for the Commissioners.  Before I ask you questions about that specific document, Mr Gray, can I just ask you, do you understand what I'm talking about when I talk about unconscious bias?

MR GRAY:  I do.

MS BENNETT:  Can you tell the Commissioners what you understand that concept to mean in the context of disability recruitment?

MR GRAY:  It could be a person looking to employ someone, forming an opinion about what they believe are the requirements or the needs for that role and making decisions summarily or arbitrarily without considering what adjustments or the person's ability rather than their disability could provide in the case of disability.  But it may also be in relation to race, ethnic background, cultural background, religion, et cetera, where people form stereotypical views, often that affect negatively, in an employment context, the employment of that individual.

MS BENNETT:  I would like in that context to take you to the first substantive page of this document.  This is a document that you provide to those who are store managers and to those who provide process tools and support in recruitment.  Is that right?

MR GRAY:  Correct.

MS BENNETT:  Now I would just like to take you to this part, this is the first substantive page under the heading "Introduction", and this is where you tell your store managers that some of the legal actions that can arise from managing people with a disability could include actions under the Fair Work Act     I won't read the balance --- Federal and State territory, anti discrimination laws, State and Territory  
occupational health and safety laws, State and Territory workers compensation or accident compensation laws.

Can you explain, Mr Gray, why managing a person with a disability can give rise to an action under, for example, State and Territory anti discrimination laws?

MR GRAY:  If a manager either made a decision to hire or not, in the case maybe not hire someone because they had a disability, they would be in breach of a number of those pieces of legislation.

MS BENNETT:  I'm just going to direct you back to what the document says.  You are telling managers who are managing people with a disability that doing so could     that a legal action that could arise from managing people with disability can include an anti discrimination lawsuit.  Why are you telling your managers that?

MR GRAY:  What we are reminding them of there is that if we don't manage things in a way that doesn't present unconscious bias or real bias, then we run the risk of running foul of laws that apply in the country.  So it's more about guiding people so they understand the implications of not managing this well, not managing carefully, and not being attuned to their obligations and responsibilities.

MS BENNETT:  Mr Gray, you would agree with me that's not what that says, isn't it?

MR GRAY:  I agree with you it could be phrased differently in that regard, but I would suggest to you and I would say to you that is not the intent we are trying to create, or the suggestion that you are making is not the intent we're trying to create.

MS BENNETT:  I understand that, but you would have, I would suggest to you, hundreds of store managers. Is that right?

MR GRAY:  Yes, that's correct.

MS BENNETT:  And hundreds more assisting them, as assistant managers or in staff recruitment roles.  Is that right?

MR GRAY:  Yes, that's correct.

MS BENNETT:  So hundreds of people in your organisation are provided with this document to help them understand what they need to do to hire people with a disability.  Is that fair?

MR GRAY:  Yes, that's fair.

MS BENNETT:  On the first page you are telling them that managing people with a disability, that legal actions that can arise from managing people with a disability can include actions under anti discrimination laws.  Isn't it the case that managing a  
person with a disability gives rise to no risk of an anti discrimination lawsuit without the discrimination?

MR GRAY:  I think, with respect, there is two positions I put to you around that.  One is, this first page needs to be read within the context of the entire document.

MS BENNETT:  Yes.  I accept that.

MR GRAY:  The second piece would be to say that if our managers ran foul or conducted themselves in a way that did breach any of those pieces of legislation, then that would give rise to a claim.  So we are reminding our managers of their responsibilities and the risks of not performing those responsibilities in a professional and compliant manner with the laws in the country.

MS BENNETT:  Do you remind them about that when thinking about hiring women, or gay and lesbian people, or people that --- (overspeaking) ---

MR GRAY:  Absolutely.

MS BENNETT:  Where do we find that in your materials, in your policies?  Do you have policies that say when hiring women you need to be aware of the risk of anti discrimination laws?

MR GRAY:  We have bullying and anti harassment policies.  We talk about that in a number of different areas, about not only this piece of legislation but all pieces of legislation in regard to safety, and the risk that an individual puts themselves at, but also the company at risk if they don't comply with the relevant legislation in the particular area they are operating in.

MS BENNETT:  I want to be really clear on your evidence.  You tell your managers that there are legal actions that can arise from managing women which could include Federal and State and Territory anti discrimination laws?

MR GRAY:  What I'm saying is that we remind managers of their obligations under various pieces of legislation that exist in the country in relation to employment laws.

CHAIR:  I think you are accepting it might be a good idea to reframe this paragraph to say what is meant.

MR GRAY:  I do accept that, Commissioner.

CHAIR:  When was this document prepared?  I believe it is undated.

MR GRAY:  I believe, I would have to check to be 100 per cent, but I believe it was either 2020 or 2021.  I would have to come back to you, Commissioner, on that.

MS BENNETT:  It refers on page 11 to application forms being in a 2016 format, but  
I wasn't otherwise able to date it other than beyond 2016.  But I did make the assumption that it was part of the 2020 changes that you refer to in your statement.

MR GRAY:  I believe so, but I would have to be absolutely sure.  For the absence of doubt I'd have to come back to you, Commissioner.

CHAIR:  The Disability and Accessible Action Plan Financial Year '21, which is annexed to your statement, when was that prepared?

MR GRAY:  That was prepared in 2020 because financial year 2021 runs from July 2020 through.

CHAIR:  What prompted the preparation of these documents?

MR GRAY:  It was part of our increased focus on employing people with disability because we set ourselves some targets around     and I appreciate Counsel Assisting doesn't want to talk about the DES process here but, we set ourselves targets around that.  What we have is a four pillar strategy ---

CHAIR:  I'm wanting to know what prompted it.  What prompted the company's interest in directing attention to the employment of people with disability?

MR GRAY:  Yes.  We felt it was an area where we could do more, and secondly we felt that we do want to be an employer that reflects the communities in which we're working, and we felt there was a requirement to step out and be clear about the actions we were taking to increase the employment and the retention importantly of people with disability within our organisation and that prompted this plan.

CHAIR:  Yes, I'm sure someone formed that view.  I'm trying to understand what prompted it.  Was it something that occurred to someone, or was that the result of an inquiry, or was that the result of some other stimulus that might have influenced Kmart or Wesfarmers as the case may be, to take an interest in disability?

MR GRAY:  I believe, from a Kmart perspective at least, it was the interest of a previous --- prior to my time, previous Managing Director had raised the question in regards to what we were doing in this area.  I believe that was the genesis of this discussion some years ago.

CHAIR:  Thank you.

MS BENNETT:  Ms Martin, I want to return to the application process that we were discussing earlier.  You were telling us about the online method by which you receive applications quite often, and that, I understand from your statement, particularly relates to the high volume entry level roles that Compass has.  You get a significant portion of applicants through what you describe as ‘high volume entry level roles’; is that right?

 
MS MARTIN:  Yes, that's correct.

MS BENNETT:  So what is the process that a person needs to go through to get their application to you?

MS MARTIN:  They can either hand it to us directly.  So we have a Diversity and Inclusion Unit with several staff members that work directly with Disability Employment Service providers so we proactively seek applications from people with disability.  Or you can go online and apply and put in an electronic application and put all your details on our recruitment system.  What happens is through that process, you can identify yourself as having a disability, and the recruiter at the other end that will get that information off that system will contact you direct to ask if you need any adjustments around your selection process going forward.

MS BENNETT:  Just to pause, the electronic application stage, is that a process that has been assessed for its accessibility for people with disability?

MS MARTIN:  Yes.  So our careers page is web content accessible on a 2.0 compliance.  We are checking that, we also include inclusive statements on the electronic adverts, so we wanted to make sure that we have that accessibility piece sitting in that system.

MS BENNETT:  I think you tell us that there's a hotline for applicants to call at the start of the process; is that right?

MS MARTIN:  Yes, it does.

MS BENNETT:  Does that go to your recruitment?

MS MARTIN:  Yes, it does.

MS BENNETT:  I understand your staff have received disability training, is that your recruitment staff?

MS MARTIN:  Yes, so our recruitment staff do the Hiring Essentials Pre course, they --- included in that are things around unconscious bias and being aware of how you can be accessible to draw the best talent through.  So making sure that the wording, how they approach people and that sort of stuff is appropriate.

MS BENNETT:  Just to pause there.  Can I just ask, I understand a reasonably significant portion of your hiring staff have received that training.  Are you able to tell the Royal Commission what level of disability confidence training your staff have received?

MS MARTIN:  When I lodged this, my statement, I think off the top of my head it was around about 150 of our key leaders and people working in our HR and recruitment areas had undertaken it.  But if you are a recruiter, the two modules that I  
have provided, around the hire and management essentials, training is a requirement that all of the recruitment staff have to go through as a part of their professional development and the area that they work in.

MS BENNETT:  So is that everyone who is going to be assessing CVs, they've all had a degree of training?

MS MARTIN:  Yes.

MS BENNETT:  And who provides that training?

MS MARTIN:  We do it internally.  We have an academy.  We put people through internal training.  We also work closely with the Australian Network on Disability as a platinum member, and we get external peak bodies to come in and give us advice.  And depending on the nature of disability, we can also draw on the strengths of Autism WA and other providers that specialise in a particular area of disability to talk to our staff about appropriate approaches and the way to handle different candidates.

MS BENNETT:  I'm sorry to interrupt you, Ms Martin.

Mr Gray, what proportion of Kmart staff had have disability training?

I'm sorry, I think you are on mute again, Mr Gray.

MR GRAY:  Apologies for that.

MS BENNETT:  We are in Melbourne, Mr Gray.  We are the best at that!

MR GRAY:  Our People Capability team have been trained, that's the operational business partners out in the field as well as in our national office, as well as our recruitment team have all been trained.  The other thing I would say is that all the store managers have been taken through, and I think it's on page 13 of my initial statement, the disability awareness and targeted disability awareness employment training has gone to store leadership teams.

MS BENNETT:  I'm going to ask you to slow down.  The interpreters will find that very difficult.

MR GRAY:  Sorry.  Yes.

MS BENNETT:  Can I just go back, I think I missed something at the start.

So can you just tell us again who has undertaken disability specific training that relates to recruitment?

MR GRAY:  Our recruitment team.
 

MS BENNETT:  Yes, and how many people is that?

MR GRAY:  There is approximately 16 or 17 people in that team.

MS BENNETT:  Then, so, how many people are involved in carrying out Kmart's recruitment task?

MR GRAY:  Those recruiters but, of course then there is line managers and store managers across the nation who are involved in that, both in our national office but also out of our store and distribution centre network.  And those people who are involved in that hiring process are required to go through the training around a disability awareness training that is rolled out to those team members in order for them to execute on their duties on that --- in addition to, as we previously talked about, the recruitment pack that is there as well.

MS BENNETT:  Yes, it's in the material.  Is it the case that everyone who is assessing a CV for a job in a store has carried out a form of disability recruitment training?

MR GRAY:  To the best of my knowledge.

MS BENNETT:  Ms Pelunsky, I'm going to ask you the same question:  do your staff have disability recruitment training?

MS PELUNSKY:  We conducted such training for 28 of our staff in 2019, but beyond that, not on a consistent basis.

MS BENNETT:  So the people carrying out the hiring at the moment haven't received that training?

MS PELUNSKY:  Not that training, no.

MS BENNETT:  You would agree with me it's well within Woolworths's capability to do that, isn't it?

MS PELUNSKY:  Yes and if I could, the last year and a half we've had to pause a lot of training due to our essentially, I guess, feeding the nation through COVID, and so a lot of our training has been on pause.  We are also carrying out training on learning and reconciliation for First Nations people, and so there is a degree around the amount of training we can push through our system at any one point.  Do I think we would like to over time ensure everyone recruiting people with disabilities had that training, I do.

MS BENNETT:  Just so I understand, is it your evidence that, but for COVID, you would have completed that task, or is that another factor into why that hasn't taken place?
 

MS PELUNSKY:  I think it's another factor that has impacted our general training schedule.

MS BENNETT:  I see.

Ms Martin, returning to you, I am intrigued by your low level AI and the extent to which it has programmed into it the capacity to identify bias or identify disability specific needs.  Are you aware if it has been audited or reviewed for that purpose?

MS MARTIN:  No, I'm not aware of that.  But I can say that when somebody identifies on that system as having a disability, they would get a direct contact from us.  We don't rely purely and solely on that system filter people in or out of our recruitment process.

MS BENNETT:  So a person with a disability who was disadvantaged by that system, how would they know they were at a disadvantage?

MS MARTIN:  They wouldn't.

MS BENNETT:  And they wouldn't know either ---

MS MARTIN:  It wouldn't show then, whether they are in or they were out.  You would go online, you would lodge your application, it would go through the portal, and our recruitment team at the other end would be looking at who has applied.  Everybody that applies and uploads their profile goes on to our system which is called Page Up.  And there is a box that you tick in there if you choose to identify.

MS BENNETT:  Does everyone who ticks that box obtain a phone call or is it just those that say they require an adjustment for the interview?

MS MARTIN:  No, they would get a contact from us, yes.

MS BENNETT:  I'm sorry, the box is the person has a disability or that they require an adjustment?

MS MARTIN:  That they have a disability.  It doesn't ask them what type of disability they have.  It just says, "Do you identify as a person living with a disability?"

MS BENNETT:  Thank you.  I think you tell us in your statement that there is an interview process, a video interview process?

MS MARTIN:  Yes.

MS BENNETT:  Is that automated or is that a live person?
 

MS MARTIN:  It is automated.  So you would record yourself and answer a series of questions and tell us about yourself.  There is a guide there.  And then you would upload that on that portal.

MS BENNETT:  So there's a series of questions that are printed or that are on the screen and you record yourself answering them?

MS MARTIN:  Yes.

MS BENNETT:  And then that goes to a central place?

MS MARTIN:  Yes, to our central recruitment.

MS BENNETT:  Okay.  And the recruiters who review that, they are part of your team that have undertaken disability training that we just talked about?

MS MARTIN:  They would have the disability confidence training and what we call our Hiring Manager Essentials.  They are considered hiring managers so they go through an essentials training program.

MS BENNETT:  And there is an opportunity, you said, for somebody to opt out of that process.  Is that the box ticking at the earlier step?

MS MARTIN:  Yes, so people may choose to identify or not identify.

MS BENNETT:  All right.  Now, I would like to ask about the question of disclosure of a disability.

Starting with you, Ms Pelunsky, I think I asked you at the start about whether or why Woolworths asked applicants to disclose their disability.  Do you have a view about gathering the data on disability and how that can be effectively done?  Is that something that Woolworths has considered?

MS PELUNSKY:  Yes, it is, and it is something we are putting our mind to now.  We are conscious that disability, and look, I'm no privacy lawyer, but I understand it would fall under sensitive health matters and therefore we are particularly thoughtful and sensitive about asking our team members for that information.  What we are considering is actually an expression of interest going out to team members who would like to disclose, and that's something we are looking at at the moment.  It is a sensitive and complex issue for us.

MS BENNETT:  Yes.  Well, can I ask you, Ms Martin, have you considered that issue internally at Compass?  The question about how to ask for or to track data in this space, is that something that has been considered by you?

MS MARTIN:  Yes, it is, and we've relied heavily on speaking to, you know, our  
partner like --- as in Australian Network on Disability, we are cognisant of the privacy and sensitivity attached to it, and that it becomes an individual's choice whether they disclose or don't disclose.

Our view is that we do not collect specific information on the types of disability that people have, right, we just say, "Do you identify or don't you?" and we try and record that because we do have targets set for the number of people with disability that we want to employ on a national basis across all of our operations.

We try to track and monitor the numbers that we are onboarding across the country so that we can give feedback to respective operational managers about how they are travelling on meeting those KPIs and their performance agreements, but we don't want to breach that privacy piece.  So there's a fine line that you walk.  Anecdotally, off the top of my head, I would say that we have a lot more people in our system that do have a disability but choose not to identify.

MS BENNETT:  Just to pause there.  You mentioned your targets.  Can you tell the Royal Commission precisely what your targets are?

MS MARTIN:  We have a minimum of 50 placements per annum that we would like to achieve across the country.  For example, in our last financial year of 2021, which is --- we work on the British financial year that ends in September --- we onboarded 112 people who identified as having disability.  So we met our target by, what is it, 224 per cent.

MS BENNETT:  Is that a recruitment target, as I understand it?

MS MARTIN:  No.  It's across our operations, and we encourage our operational managers to be proactive about encouraging people with disability to work with us.

MS BENNETT:  Do you have targets at different levels?  Are you looking to make sure that you have people with a disability in leadership roles in certain numbers, for example?

MS MARTIN:  Yes.  When I talk about how we identify those that choose to want to step forward and say they have a disability or they are living with a disability, we track on our payroll system what levels of management they're in, if they're professional, if they've got a trade background or if they are in entry level roles.  Because another piece to our whole disability recruitment and onboarding is that talent development pipeline, and we like to see diversity move across the system, both vertical and horizontal movement.

MS BENNETT:  Do you have a specific target for people with disability above a certain level within the organisation?

MS MARTIN:  No.  We just have a baseline one as a minimum target to onboard 50 people.
 

MS BENNETT:  So you can fulfil your target with your higher volume low level recruits or you can fill it with senior executives, they would all count?

MS MARTIN:  Yes.  Yes.

MS BENNETT:  I see.

Ms Pelunsky, first of all, do you have any targets for the recruitment of people with disability?

MS PELUNSKY:  Not at this stage, no.

MS BENNETT:  Has Woolworths considered using them?

MS PELUNSKY:  Yes, it is something we are thinking about as we put together our Accessibility Action Plan and also getting guidelines from the Australian Network of Disability who is working with us on that.

MS BENNETT:  And is that, can I suggest, informing your consideration of the data point that we talked about before?

MS PELUNSKY:  Absolutely.

MS BENNETT:  It's difficult to have targets without having a meaningful way of tracking whether you are meeting them?

MS PELUNSKY:  You know, I think there is absolute intent to increase, wherever possible, the number of people we employ with disability and to remove barriers.  I think, you know, even from everything I'm hearing today, it's not a simple process, and I think we're sensitive to that and want to deal with it sensitively.  We take inclusion as a strategy very seriously at Woolworths and we put a lot of thought into it.  So I don't have a quick simple answer, but absolutely we are considering it all and trying to get as much advice as we can on it.

CHAIR:  It would have been equally unsimple if Woolworths started five years ago, wouldn't it?

MS PELUNSKY:  Well, I think we've always employed people with disability and we are working on a range of areas, so I ---

CHAIR:  It's very difficult to see that from your statement.  You don't collect any information on the applications for adjustments, you don't know how many there have been, they are dealt with at a State level, there is no coordination at a national level.  This is pretty basic material, isn't it?

MS PELUNSKY:  Well, if I may, I think there are some wonderful examples in our  
statement, of activity that is happening across the business, and I think what we ---

CHAIR:  Sorry, that's not what I'm asking you about.

MS PELUNSKY:  The question was ---

CHAIR:  You have previously been asked questions and then you respond by saying "But we are doing terrific things elsewhere".  Would you mind just concentrating.  I find it difficult to understand how an organisation like Woolworths wouldn't even be compiling data on something as basic as requests for adjustments and what was done.  Would you answer that?  Why is that ---

MS PELUNSKY:  If I may then be able to answer in a way that ---

CHAIR:  Please do answer my question, if you wouldn't mind.

MS PELUNSKY:  --- the complexity and scale of our organisation, and the number of areas that we are working on simultaneously, so if I think of our First Nations recruitment, we recruit more First Nations people than any other organisation --- (overspeaking) ---

CHAIR:  I'm not asking you about First Nations.  Please, if you would be good enough.  You've answered the question as far as I think you are able to do so.  Thank you.  Yes.

MS PELUNSKY:  All right, may I then address that specifically.  Would we --- (overspeaking) ---

CHAIR:  If you are answering my question, yes.  If you want to tell us about what you are doing in other areas, no.

MS PELUNSKY:  We are putting together an Accessibility Action Plan that will help us improve in all these areas.  My ask is that the Commission hears the genuine intent of Woolworths to create a truly inclusive culture across a number of areas.  Do we need to make steps forward in all of them?  Yes, we do, and we acknowledge that.  I would ask for some appreciation of the complexity and scale of our organisation and the goodwill that does exist in many areas.

CHAIR:  Woolworths employs, you said, I think, in your statement, 200,000 people, more or less?

MS PELUNSKY:  Yes.

CHAIR:  What was the workforce pre COVID 19?

MS PELUNSKY:  Approximately the same.  Sorry, I'm not understanding the question.
 

CHAIR:  Are you sure Woolworths' overall employment didn't increase materially over COVID 19?

MS PELUNSKY:  We've had both --- people who we've employed as well as areas where we've had to change our operations.  I'm sorry, I'm not sure what the actual question is.

CHAIR:  I had rather thought that Woolworths' total employment had increased materially during COVID because Woolworths' operations had increased materially during COVID.

MS PELUNSKY:  I can get     if that is a specific question, I can get the exact numbers.  But to my understanding, our numbers are not dramatically different.

CHAIR:  All right.  Thank you.

MS BENNETT:  Mr Gray, do you have targets for the recruitment of people with disability or the proportion of your workforce that has a disability?

MR GRAY:  We have specific targets relating to those who are in a formal program, so the Disability Employment Services providers or program.  We don't have targets at this stage in relation to the broader population.  What we have found, however, is with the introduction and part of the reason we scoped our new HR system to ensure that we could have the ability for people to identify either in their application or retrospectively once they are an existing team member, was to be able to track that sort of data going forward.

As I mentioned, I think there's a couple in my statement there about what we've seen around the increase in people self identifying.  And if I could, you talked previously to other panelists about those items and challenges, I think there are three issues in my mind about how we get better data.  Firstly, as the other panelists have talked about in relation to sensitivities, we are very cognitive it is a sensitive issue; we are certainly keen not to force anybody to disclose any matter that they don't feel comfortable to.  However, we are strongly encouraging people to identify less about the disability but what we can do as an organisation to help make adjustments or support them, whatever their need may be to perform their roles.  That's one issue.

The second piece, I think, is the systems issue which we have now addressed by having a system in place, HR system that can collect that data.  I think thirdly and perhaps a topic that hasn't been touched is the culture in an organisation.  Because I think people feel more willing to either apply to or remain employed or disclose or self identify in an organisation which has a culture that is open that, is supportive, that is caring in that regard.  So I think there are three elements to improving this position and that's, I think, key to our thinking as we move forward with our strategies and plans.

 
MS BENNETT:  Can I just ask you about that.  We talked before about the number of people recorded in your HR system.  Do you otherwise have figures for people with disability that you have from other sources other than your HR sources?

MR GRAY:  No, we don't.  What we do do, however, is survey our teams in regards to their view around diversity inclusion, whether they feel valued, whether they believe people from any background can succeed in our organisation.  In fact, 83 per cent of our people say that they believe Kmart values diversity inclusion, 88 per cent of people ---

MS BENNETT:  I'm going to pause you there.  Does that survey tell you about the     were people asked whether or not they have a disability on an anonymous basis?

MR GRAY:  No.  We are, however, launching an inclusion survey as part of Harmony Week in March next year, where we will be surveying people in an anonymous sense to identify, amongst other things, whether they have a disability.

MS BENNETT:  Yes.  All right.

I have no further questions for these witnesses, Chair.

CHAIR:  Thank you.

Commissioner Galbally, do you have any questions of members of the panel?

QUESTIONS BY THE COMMISSION

COMMISSIONER GALBALLY:  Yes.  I'm just trying to find Jennifer Westacott, her question, signalling that people with disabilities are welcome.  That was a phrase she used as an overall goal for businesses.  That takes me to the topic of disability as a strength.  You know, that many people would say that you're more adventurous, you're more flexible, there's all sorts of things.  I just wondered if any of the three corporations have a comment on disability as a strength and whether that's expressed anywhere in any of the material, that “we value disability because we see it as a strength”, and whether that might relate to disclosure, that people would be more likely to disclose?  You go first.  Thank you.

(Overspeaking)

CHAIR:  Someone go first.

MR GRAY:  I will go first   

MS MARTIN: --- (overspeaking) ---
 

CHAIR:  I will choose.  Ms Martin will go first.

MS MARTIN:  Thank you.  So picking up on your point, we set up what we call a Diversity and Inclusion Advisory Committee that is chaired by our Managing Director in Australia.  And we co opt on to that large national group a lot of our senior managers and other operators across our business.  And sitting underneath it is a working group that we call “Undisability”.

So we've got our platinum membership with the Australian Network on Disability, Diversity and Inclusion Strategy, we are working on some key targets and we are trying to do a lot of work around inclusivity and really encouraging people to share their stories and information.

I think when I did my statement I might have provided some material on some examples of people that we have onboarded.  What we found is that that whole arrangement and getting the word out and encouraging people to step forward and share their experiences really helps develop momentum in the organisation for other people to step forward and champion this whole piece.

From 10 years ago when I first looked at our Pay Global system, three part time workers identified as having a disability; now we have 194 and increasing.  And that's what we really want to get the word out, that everybody has a whole raft of different talents that helps us with reflecting the broader community, that talent pipeline.  It's a great source of people to come into the business, and it gives us stability and retention as well.  So we've put out all of those messages and I have to say that I've definitely seen a marked improvement and there is opportunity for us to further grow and develop and improve as well.

COMMISSIONER GALBALLY:  Anyone else?

CHAIR:  Mr Gray can go next.

MR GRAY:  Thank you, Commissioner.  I probably draw your attention, Commissioner, to point number 10 of my supplementary statement where we talk about or I talk about the wording that we've now included in our application forms that says "We encourage applications of people with disability and therefore we would like to know if you need adjustments to be the best team member you can at Kmart", and it goes on from there.  Further, I draw your attention to the document that Counsel Assisting discussed with you previously, which is the “People with Disability Recruitment Resource Pack”, and in the first introduction we talk about, amongst other things: it is important that we are representative of our communities.  But it's also important that we have diverse teams throughout Kmart.  Diverse teams offer different points of view, talents and problem solving which leads to innovative ideas and innovation.  This, coupled with great teamwork, also leads to brilliant business outcomes.  So it's important for us to signal that to those applicants but our existing team members.
 

CHAIR:  Ms Pelunsky.

MS PELUNSKY:  Thank you.  Two areas I would draw your attention to in our statement, that one is about the specific capability of people with disability is seen actually as a strength.  An example there was our relationship with Autocon, which is a consultancy that actually is an employer of people on the autistic spectrum to use their specific capability in technology.  So we've now worked with them for a period of two years really leveraging their ability to look at things differently and bring different skills to many of the systems that we have in stores, and have recently recruited three of those people permanently.  So it has been a wonderful experience of the strength that a perceived disability can bring.

I won't go through all our inclusion statements other than to echo what Mr Gray has said, it's the culture as much as the specifics, which is what I think I've been trying to allude to around Woolworths' focus on inclusion.  But when you did mention the signalling a welcome, there is a beautiful example in our Mulgrave site of an individual who is blind and actually operates our welcoming desk.  And I think those symbols of visibility, not only in store but throughout our organisation, are things we are trying to do more of and celebrate, and there has certainly been feedback we've been given to do more, highlighting those examples across the organisation.

COMMISSIONER GALBALLY:  Thank you.

CHAIR:  Thank you.  Commissioner Ryan.

COMMISSIONER RYAN:  Can I ask a really practical question.  In the previous hearings that we had, we had a young bloke who is now a decent comedian.  He came to us and told us his story.  He worked in a grocery store for a period of time.  One of the jobs he really wanted to do was to be a check out operator.  Let's imagine he applied to work at Woolworths or Kmart.  Would he be able to work in a wheelchair behind a checkout, would he be welcome, what adjustments would you make for him?  Just how easy would it be for him to get a job in your average Woolworths or Kmart store and do the job, given he's in a wheelchair?

CHAIR:  You can choose which of the four questions you would answer.

MS PELUNSKY:  I'm happy to go first.  If I was the hiring manager, absolutely, and it's very easy to make those adjustments, and (inaudible) development team would work with us to do that.  To have confidence that every single hiring manager would respond in that way at this stage, I don't, and I hope that's where we will get to over the time.

COMMISSIONER RYAN:  Do you know whether your stores would accommodate a wheelchair behind a checkout?

MS PELUNSKY:  I would have to speak to the store managers specifically, but  
we've been inspired by Walgreens, for example, who say they employ 40 per cent of their people have disability, and we are (inaudible) through our Accessibility Action Plan to create more and more opportunities for people with disability.  That is a great example of one.

CHAIR:  Did Mr Gray want to say something?

MR GRAY:   Thank you, Commissioner.  So, firstly, more than welcome in our business, absolutely.  No doubt, I mean as you may be aware, Kmart has a lot of self service checkouts, but for the checkouts that we do have that are manned by our team members, we would need to make any adjustment, but we would be more than happy to make those adjustment in that regard.

COMMISSIONER RYAN:  Mr Gray, can I take you back to the recruitment resource book that we spoke of earlier.  I've noticed on page 9 there is an "Information to recruiters to take notice of occupational health and safety laws".  It says:

Accordingly, Kmart needs to determine whether a candidate has the capability to perform the requirements of the role with or without workplace adjustments, and whether they can do this safely without risk or harm to themselves or others.

What assistance is given to your recruiters to interpret that in a way that it does not frighten them off, is one of the things that has apparently been said by surveys, is that one of the key fears people have of employing people with disability is that they might be a workplace safety risk.  In your recruitment brochure that instructs people, it actually names it.  How do you make sure that does not frighten people?

MR GRAY:  I guess I would say a couple of things.  One is that the vast majority of adjustments that people whether they be safety, supervision or otherwise are accommodated.  Secondly, it says we also talk right upfront in our recruitment application form that we encourage people with disability to apply and we are open to and would like to understand what adjustments they may well need to enable them to do their job.  So rather than creating it as a barrier, we are saying what can we do to help you to do that job.

COMMISSIONER RYAN:  You would agree that's not what that says.  It's almost warning a person ---

MR GRAY:  That's correct, that's not what that says.  What I'm saying, in terms of     this document here is not something that goes to applicants or to scare recruiters off, because our recruiters are trained in the disability employment side of things and making sure that we are inclusive.  They don't look at that and say "Well, if there is a safety issue we can't deal with it"; what they say is, "How do I go and get support to make an adjustment for this person to make sure we can include them in our workforce?"
 

COMMISSIONER RYAN:  Thank you, Chair.

CHAIR:  Thank you.

Presumably in the employment of Kmart and Woolworths, a significant proportion of the customers are people with disability.  What do you do to accommodate them?

MR GRAY:  Perhaps I can start with that.  There is a couple of things, Commissioner, that I would like to highlight to you.  Firstly we've launched a range of products in our stores that represent people with disability, whether it be vision impairment, toys for children, to make it     and help us normalise disability or ability that is different to others in the community.  So that's one piece.  We've also included people with disability in our advertising, be that TV advertising or catalogue advertising.

Thirdly, we've introduced the concept called Quiet Space into 27 stores, which we started as a pilot.  Quiet Space runs for two hours on every Wednesday afternoon.  These stores we have adjusted the lighting to space it, we've dulled the lighting, and we also reduce noise and distractions in the store.  So, for example, we stop music playing.  The purpose behind that is to enable people who may be on the spectrum, or have children who may be on the spectrum, who get impacted by noise and distraction, to be able to come and shop in a way that doesn't create large anxiety or difficulties for them.  We are also seeing benefits of that obviously for our team members in those stores as well.

So they are some of the things that we've been doing to try and impact that.  I would also say, from a customer perspective, the reaction to our stores and to our team members, particularly those who may have a disability, is extremely positive, and our feedback from both customers and team members and our experience with employing people with disability, I can only say it's positive.  So we look forward to doing more in this regard.

CHAIR:  Thank you for the additional editorial.

Yes, Ms Pelunsky, what is your experience?

MS PELUNSKY:  We've tried to build in systemically a way of how our stores can be built and designed with inclusion in mind and with accessibility in mind, and so our format and network development team go through training around that.  Sorry.

CHAIR:  I just received a signal.  Nothing to do with you.  Carry on.

MS PELUNSKY:  Our group design team also go through training so that we are building in accessibility through the design of our stores which helps in terms of space, width, lifts, ramps and a number of issues as well in addition to those.

 
CHAIR:  Thank you.  I assume that there are no legal representatives who wish to ask any members of the panel any questions?  Unless I hear to the contrary, I will assume that no one does want to ask any questions.

In that case, thank you very much to each of the ---

MS BENNETT:  Chair   

CHAIR:  I'm sorry?

MS BENNETT:  If the Commission is going to rise, I was going to tender the ---

CHAIR:  I was just going to thank the members of the panel and then by all means you can tender what you like.

MS BENNETT:  Thank you.

CHAIR:  Thank you very much to each of the members of the panel, Ms Martin, Mr Gray, Ms Pelunsky.  Thank you for your assistance and for the statements that you have provided, and for the evidence you've given today.  Thank you.  Yes.

THE WITNESSES WITHDREW

MS BENNETT:  Chair, I would now like to tender the statements of the witnesses that you've just heard from.  If I can do that in the same compendious way that I have in the past.

First, I have the statement of Mr Gray of 18 June 2021 and attachments, and we would ask that the statement be marked 19 9, and the attachments be marked 19 9.1 to 19 9.12.

The supplementary statement of Mr Gray dated 29 October be tendered as Exhibit 19 9.13 with attachments as 19 9.14 and 15.

The statement of Ms Pelunsky be tendered as 19 10 and the attachments 19 10.1 through to 5.

Finally, the statement of Ms Martin of 15 June 2021 be tendered as Exhibit 19 11 with the attachments 19 11.1 to 19 11.6.

CHAIR:  Yes.  All of the documents to which Ms Bennett has referred will be admitted into evidence and given the exhibit numbers she has identified, and I've initialled the document that records that.

 
EXHIBIT #19 9   STATEMENT OF MR TRISTRAM GRAY DATED 18 JUNE 2021

EXHIBITS #19 9.1 TO #19 9.12   ANNEXURES TO STATEMENT OF MR TRISTRAM GRAY

EXHIBIT #19 9.13   SUPPLEMENTARY STATEMENT OF MR TRISTRAM GRAY DATED 29 OCTOBER 2021

EXHIBITS #19 9.14 TO #19 9.15   ANNEXURES TO SUPPLEMENTARY STATEMENT OF MR TRISTRAM GRAY

EXHIBIT #19 10   STATEMENT OF MS CARMEL PELUNSKY DATED 15 JUNE 2021

EXHIBITS #19 10.1 TO #19 10.5   ANNEXURES TO STATEMENT OF MS CARMEL PELUNSKY

EXHIBIT #19 11   STATEMENT OF MS VANESSA MARTIN DATED 15 JUNE 2021

EXHIBITS #19 11.1 TO #19 11.6   ANNEXURES TO STATEMENT OF MS VANESSA MARTIN

MS BENNETT:  Can I note that the tender of the Woolworths document is subject to the provision of the corrections foreshadowed at the start of the evidence which we expect and understand will be provided in writing this afternoon?

CHAIR:  Yes.  Thank you.  It's now just after 2.50.  Are we going to adjourn now?

MS BENNETT:  Yes.  If possible can we have 15 minutes?

CHAIR:  We will resume at 3.05.

ADJOURNED    [2.52 PM]

RESUMED    [3.07 PM]
 

CHAIR:  Yes, Ms Bennett.

MS BENNETT:  The next panelists, we have Ms Lewis from IBM, Ms Badenoch and Mr Nelson from Services Australia.  I wonder if they might be brought into the virtual hearing room.

MS BELINDA LEWIS, CALLED

MS ALEXANDRA BADENOCH, CALLED

MR MICHAEL NELSON, CALLED

CHAIR:  I think we now have members of the panel on screen.

Thank you very much for coming to the Royal Commission to give evidence, Ms Lewis, Ms Badenoch and Mr Nelson.  We appreciate your attendance and the statements that have been prepared for the Royal Commission.  Just to let you know where everybody is located, Commissioner Galbally is in Melbourne.  Commissioner Ryan is with me in the Sydney hearing room.  Ms Bennett, who will be asking you some questions, is also in the Sydney hearing room and I will now ask Ms Bennett to ask questions.

EXAMINATION BY MS BENNETT

MS BENNETT:  Thank you, Chair.

I am going to start by asking you each to identify your statements that you've made.

Can I start with you, Ms Lewis.  You've made a supplementary statement which the Commissioners will find behind Tab 31 of Tender Bundle B.  By that supplementary statement, you incorporate and adopt the statement of Ms Le Page; is that right?

MS LEWIS:  Yes, correct.

MS BENNETT:  That primary statement is at Tab 15 of Tender Bundle B, Commissioners.

Ms Lewis, speaking about both statements read together, are they accurate?

 
MS LEWIS:  Yes, they are.

MS BENNETT:  Thank you.

Mr Nelson, turning to you, you've made a statement which the Commissioners will find at Tender Bundle C Tab 35.  Is that statement accurate, Mr Nelson?

MR NELSON:  Yes, it is.  Thank you.

MS BENNETT:  Ms Badenoch, first, am I saying your name correctly?

MS BADENOCH:  Yes, you are, thank you.

MS BENNETT:  You've made a statement and supplementary statement to this Royal Commission.  The Commissioners will find the primary statement at Tab 91 and the supplementary at Tab 117.  Ms Badenoch, read together, are those statements correct?

MS BADENOCH:  Yes, they are.

MS BENNETT:  Thank you.

Commissioners, this panel is concerned with a developing area which has arisen out of the statements provided by the various employers to the Royal Commission for this hearing.  Some organisations, in addressing barriers to people with disability accessing employment, have identified, as part of the steps that they have taken, that they have initiated proactive recruitment of neuro diverse individuals focused upon areas of their strengths or perceived strengths.  It's that issue that I would like to explore to understand how such a process came into being in each organisation, how it's operating, and how it differs from what I will refer to as mainstream recruitment.  And I would like to ask about how that impacts on the overall inclusion of people with a disability within the workplace.

So starting with you, Ms Lewis, will just as a starting point, is it leaving aside the neurodiversity program we are here to talk about, is it IBM's ambition to have more people with a disability working in its organisation or working for it?

MS LEWIS:  Yes, absolutely.

MS BENNETT:  And that's not contingent upon this neurodiversity stream that is a broader ambition, is that fair?

MS LEWIS:  Yes, absolutely.

MS BENNETT:  Ms Badenoch, is it the same for Telstra?

MS BADENOCH:  Absolutely.  We are keen to make sure that we access the full  
talent pool and as part of that, that includes employing people with a disability.

MS BENNETT:  Yes.

Mr Nelson, you would agree with that proposition generally, leaving aside neurodiversity recruitment, Services Australia seeks to increase its representation of employees with a disability.  Is that right?

MR NELSON:  Yes, it does.

MS BENNETT:  I just want to very briefly understand what I've called the mainstream recruitment process.  I would like to be able to compare and contrast it with how you operate in your neurodiversity programs.  I am going to start with the application, then I am going to ask you to sketch it in the briefest terms, including how a person makes their application, progresses to an interview and an offer.  So those three issues.

Ms Badenoch, starting with you can you tell the Commission what your mainstream recruitment process looks like?

MS BADENOCH:  Absolutely.  So generally speaking, almost 100 per cent, just shy of 100 per cent of our roles would be what we term publicly advertised, so not through a recruitment agency but via public platforms such as Seek or another equivalent platform so that our roles are visible to much of the market as possible, and that's quite a deliberate choice that we make because we think that that is our best chance at attracting or making the full talent pool aware of our employment opportunities.  A prospective employee can then seek to apply for a role.

If they need assistance, and are able to flag right at the start of the process that they need some modification or additional support with that recruitment process so that we can put relevant modifications to the process in place, and that may be from everything from people's ability to deal with our standard application process, so whether they need assistance and our recruiter to edge gauge with them in a more bespoke process, or whether it might be wanting to flag with us, should they come through to interview, that they will need some assistance.  For example ---

MS BENNETT:  I'm sorry to interrupt you, Ms Badenoch.  I'm going to ask you for the     I understand I've just finished examining a range of witnesses about precisely this process and so I understand that you are keen to tell the Royal Commission about it.  I am interested, but at this point I really want to understand the undifferentiated process, so assume a person in very short form so that we can then identify variations.

MS BADENOCH:  Absolutely.  So we would advertise the role through a public forum.  Applicants would apply generally online for that role.  The process, depending on the role type, would either through a recruiter's hands, or sometimes through some artificial intelligence, shortlist applicants to go for the first round  
interview, and then --- go through first round and then, depending on the nature of the role, multiple rounds of interview to finally select a candidate based on the requirements specified of the role.

MS BENNETT:  Thank you.  Just to ask very briefly about the interview, is that a face to face interview with a recruitment specialist and someone in the business?

MS BADENOCH:  It will vary.  It may be that the first round sometimes is done purely by recruiters.  And they will start to shortlist down, depending on the number of applicants or the nature and complexity of the role, it may be with someone in the business at the same time.  So it will vary depending on the role.

MS BENNETT:  Right.  In pre COVID times we have called them face to face interviews.  However they might now be ---

MS BADENOCH:  Yes.  They would have always had a variance between online to physical face to face.  So we always have had a degree of virtual interviewing as well.

MS BENNETT:  Okay.  Thank you.  Turning to you, Ms Lewis, can you in short form tell us about your process with the same processes, application, screening, interview, offer?

MS LEWIS:  Yes, certainly.  Very similar.  So we will post roles on public forums and that, as well as our own website.  People will apply for those opportunities and then it comes through to the recruitment organisation.  We would do a screen at the recruitment stage and, of course, we would then notify if we would like to go through the first round screening interview.  If anyone needs any accommodation at that stage, we would actually ask if they require any assistance.  And then further on through the interview stages, it would move to second round and, depending on how senior that role is, it could even move to third round.

Most of the interviewing process is done virtually and/or face to face, but we do have that option, and that was not just about COVID during the period, but also prior to COVID we have that opportunity for people to go both mediums.

MS BENNETT:  Now, Ms Lewis, I'm going to ask you to slow down slightly and I will take the opportunity to remind myself and the rest of the panel to do the same.  Thank you.

Your interviews, are they behavioural conversational interviews?

MS LEWIS:  Behavioural based interview.

MS BENNETT:  That, I take it, is the same for you, Ms Badenoch, at Telstra?

MS BADENOCH:  Correct.
 

MS BENNETT:  Mr Nelson, can you briefly sketch the process in your mainstream recruitment?

MR NELSON:  Yes, I will, and noting of course that there are opportunities for people to indicate if they have disabilities through the process and be supported, the general process is that we would advertise a position to the entire Australian community.  We are required to do that.  We do that through what is called APS jobs in other portals or other formats.

People would apply online for those positions and then, through an application process, so they would lodge an application with their CV to us.  We would consider those generally, and then invite them to undertake an assessment process.

Now, in more recent times we've moved away, as many people have, away from face to face meetings as the primary source.  In fact we've undertaken a number of bulk recruitment processes recently where we've had an assessment process online which requires people to show a particular aptitude for different things, and then they would progress to a one way video interview before they are assessed by a group of managers and then progress further for being considered to be successful or not in the process.  We would also, of course, contact referees where required.

MS BENNETT:  A one way video interview is a person answering questions to a video and then submitting the reporting?

MR NELSON:  That's correct.

MS BENNETT:  I see.  Now, all three of you or all three of the organisations which you represent have a neurodiversity program.  Can you tell me, and that involves some changes in the way that you recruit and then retain people.  Is that a fair summary across the board?  I'm going to ask you to nod if that's a fair summary.  Okay.  Thank you.  I would like now to ask you why did you develop the neurodiversity program.

I start with you, Mr Nelson.  Where did the idea come from?  Let me start there.

MR NELSON:  I suppose historically this started in the Chief Information Officer area in IT.  So we engaged with an organisation to establish and be a part of what's called the Dandelion Program.  Now, that's a contracted arrangement so it differs from our current process that we are working through now, and which differs to the extent that people who came through the Dandelion Program are contractors, people who are coming through the Aurora Program are employees of ours.  So quite different in relation to areas of focus as well.

The initial interest came from a body of research that was understood and well shared at the time in 2014, 2015 about the attributes of neurodiverse people, and how they were directly being applied around the world in different areas into the IT space,  
particularly around testing.  So that's where the genesis of this came from.

MS BENNETT:  So testing what?

MR NELSON:  IT testing, user testing, if you like.  In more recent times we have considered there's a broader application to people with neurodiverse skills, again based on research, we undertook the first of our pilot programs in 2020 whereby we engaged 11 people with assistance through Specialisterne who are specialists in the neurodiverse space.  They supported us with that process over the last 12 months.

Now, the process will run up until about 18 months, and we've committed to another 30 people through this Aurora Program with Specialisterne as well, going forward.  The thing that we're doing differently to what we've done in the past is broadening out the range of areas in the business that they are working in, those people.

MS BENNETT:  Can I pause there because I want to come to that.  I just want to speak to your colleagues first about the same topic about where the neurodiversity program came from, what its genesis was.

Can I ask you, Ms Lewis, in your organisation IBM, can you speak about the genesis of your neurodiversity program?

MS LEWIS:  Yes, so the neurodiversity program is a global program for IBM over nine countries and Australia being one of those countries that adopted the neurodiversity program, and it really came from the recruitment process, how it provided the opportunity for people to showcase their skills rather than describe them, which is through normally the way we would do recruitment process mainstream.  And so that allowed people with neurodiversity abilities to really shine through this type of a workshop approach, through a hiring process.

MS BENNETT:  Thank you.  That's very helpful.

Ms Badenoch, can I ask you the same question.  Are you aware of the genesis of Telstra's neurodiversity program?

MS BADENOCH:  Absolutely.  It is really part of a broader commitment that we have through diversity and inclusion, so it sits within that space for us, and we have a number of programs which look to broaden the scope of candidates that we attract for a range of reasons.  One, we absolutely believe that there is talent in all communities which we want to be able to access.  Also, we have specific roles, for example, that we do want to employ people who have different experiences.  For example, people who will actually test our products and services to ensure that they are able to service all of our customers.

So we want people with lived experiences to come and work for us, and to actually help our product development, our program delivery and our customer service and support.  So that is where it came from.  Do you want me to stop there or talk about - 
--

MS BENNETT:  No, I will come to the program in a moment.  I'm interested in genesis.

Building on that.  Mr Nelson, can you tell me about the development of neurodiverse people and the development of the program with Services Australia?

MR NELSON:  Yes.  So as I mentioned before, Counsel, that we actually engaged with Specialisterne who are experts in the development of neurodiverse programs, so we don't indicate or suggest that we are experts in any way.  So using their knowledge and expertise, we've been able to form a recruitment or a selection process which accommodates and allows us to understand the skills and strengths of neurodiverse people so that we can identify those people who are going to be most successful in our work areas in the workplace.

MS BENNETT:  Thank you.

Ms Badenoch, I suspect you are going to tell me the same thing, but perhaps you can tell the Royal Commission about the involvement of neurodiverse people and the development of your program.

MS BADENOCH:  Absolutely.  So we have actually followed exactly the same path which is partnering with Specialisterne and leveraging someone with specialist capability in this area because we didn't feel that is something that we necessarily brought to the table.  So they have helped us define our advertising, our recruitment, our onboarding, the entire process all the way through, just as Mr Nelson described.

MS BENNETT:  Yes, thank you.

Ms Lewis, can you tell me from IBM's perspective about the involvement of neurodiverse people?

MS LEWIS:  Yes, and the same too, we have engaged with Specialisterne in this area, but also we have included our business resourcing group, which is our neurodiversity business resource group which has over 2,000 members that are neurodivergent but also allies and we actively engage that community in regards to building a successful program.  You know, that's sustainable but also apply to neurodiversity recruitment, but also the success in regards to career development and ongoing development of our people.

MS BENNETT:  Ms Lewis I'm glad you mention that.  I would like to ask about career development.  Can you tell the Royal Commission about what the development path is for people who are recruited through this program?

MS LEWIS:  Yes.  So a lot of them come into the areas of development, cloud computing, testing and actually out of the people that we've already hired through  
this program, we've already had in the first two years, six of them move up in regards to their career development.  So that is an upward movement which is fabulous to see, that they have moved not only from client sets but also for some different roles and that.  So it is good to see that we are seeing some career development also in this area.

But we are focused on the training and development of our people.  So in that area we have available all of the online tools and resources for training and development and our neurodiverse community is highly engaged in this area in regards to upskilling their ability in not only the areas that they are focused on today but of the future and our leaders are encouraging that to making sure they are looking at what are the possibilities for their next role, what are they looking for in their career path.

And so our leaders are really helping guide them through about where they can focus on that skill development as well to make sure they are pairing them with mentoring and also those coaches that we have available in IBM.  Of course, our community and resource group are extremely helpful in regards to making sure that they are a collective group and encouraging one another as well to do their best but also to excel in IBM.

MS BENNETT:  Is it fair to say that somebody through your neurodiversity program may well be identified and recruited as a specialist, like a programmer but your experience so far two years into the program is they don't necessarily stay in that role?

MS LEWIS:  They can move into testing, they can move into other areas that is suited to their skill set.  There is no barriers for them to move into any open roles that become available if they've got the right required skill set for that role.

MS BENNETT:  Ms Badenoch, how long has your neurodiversity program been on foot?

MS BADENOCH:  We are fairly early into this journey.  We had our first intake in January 2021.

MS BENNETT:  So it now being November, it might be too soon to answer this question but is it your intention that people recruited into that role remain in specialist roles or do they have the opportunity to move around the organisation?

MS BADENOCH:  They absolutely have the opportunity to move around the organisation.  There are some standard supports that we have so we have a huge amount of available training, development and career pathway supports that sit for our entire workforce but also for this particular cohort we have done a range of things from specialist training for their managers to ensure that they are actually more equipped to have the right career conversations and think about how they might need some additional support in exploring different roles and opportunities in the organisation.
 

We also, like IBM, have what we call an employee representative group, we have Telstra Ability who creates a cohort of people who either have disabilities or a range of allies who are there to coach, mentor and support people through their development journey.  So absolutely we would expect people to learn, grow and develop and have no less opportunity than anyone else at Telstra.

MS BENNETT:  Mr Nelson, how long has your, I believe, pilot program been on foot?

MR NELSON:  So the beginning of 2020 was when we started that program.  So it's probably a little bit over 12 months old now, coming up to probably closer to 18 months.

MS BENNETT:  How many people have you recruited in through that program so far?

MR NELSON:  11 and we have had approval for another 30 and we are engaging heavily with Specialisterne now.

MS BENNETT:  And we've skipped over the actual cohort of people employed by you.  But I would like to focus on the way in which you change your recruitment strategy for this program.  Mr Nelson, can you speak first to that.  What have you changed about the way that you recruit people as part of this neurodiversity program?

MR NELSON:  I think this is part of a broader strategy that has come through our diversity strategy and also our inclusive action plan.  So all of the actions that we take are reliant on that.  This is quite a specific program though so I suppose what we do get is the learnings from this process and from working with not only our neurodiverse people but also Specialisterne and then we get to apply that to our other processes.

We are also doing a broader piece of work with Specialisterne to try and see how we can reduce the barriers to recruitment or engagement, if you like.  Because some of the feedback in our conversations with them was that, and with our neurodiverse people, was that there are difficulties in terms of the normal processes for people to make it through our normal recruitment processes to engagement with organisations.

MS BENNETT:  Can I just pause there and ask what is it that needed to change about your standard recruitment process in order to facilitate neurodiverse people coming into your organisation?  Can you think of any specifics for us?

MR NELSON:  Some of the feedback went to the structure of the approaches we took and we weren't confirming what to expect well enough for people before they would arrive for those interviews and undertake those interviews.  Our experience from that has been that we need to give people a good forewarning as to what to expect through these processes because uncertainty is something that neurodiverse  
people find difficulty with.

MS BENNETT:  Also.  Ms Lewis, are you able to identify what the key changes are that IBM needed to implement to create further opportunities for the neurodiverse community here?

MS LEWIS:  Yes.  As I mentioned before about the showcasing, it is really important.  And I'm going to go a little bit tactical here.  So we've got a four week program.  The week one is the overview for neurodiverse candidates in regards to the roles that are available in IBM, the career paths that are available in IBM.  And then we move into week two which is a mock client type of a technique that they get to design their own website.

And then we go into week three which is a presentation, design thinking, you know, group exercise.  And then the week four shadowing an IBMer in regards to what we call a day in the life of IBM.  So they can understand what they would experience, you know, in a day in the life of an IBMer.  We also then provide them with a pack in readiness of joining IBM and we also give a pack to managers in regards to how do you welcome your neurodiverse new employee into IBM.

MS BENNETT:  That four week program, is that before the person is hired or after they are hired?

MS LEWIS:  So that process is actually through the assessment phase.  So that is     we will do the assessment phase and then we will go through in regards to moving those people that are successful into appointment of those roles.

MS BENNETT:  So how do people get into the assessment phase?  Do they lodge an application online?  How does that happen?

MS LEWIS:  So Specialisterne, again we go through Specialisterne as our recruitment partner and they will actually go through all of the applications and that and then put those people that, you know, should go through the assessment phase in regards to the recruitment assessment phase through that four week period.

MS BENNETT:  So it's a completely different recruitment process?

MS LEWIS:  Very different.

MS BENNETT:  There no more of the interview, even the application form is done away with.  It's a behavioural interview?

MS LEWIS:  It's a relaxed atmosphere.  It's a cohort.  You know, they are going through in regards to showcasing what they are great at.  That allows them to get comfortable with, you know, the IBMers that they are meeting for the first time and it gives them best opportunity to do their utmost and best.

 
MS BENNETT:  Ms Badenoch, can you tell us about how Telstra changes its recruitment process from the one that you described earlier to what is used in the neurodiversity space?

MS BADENOCH:  Very much like IBM, it is a completely different process.  We have chosen to work with Specialisterne as well and Specialisterne do the direct sourcing of the cohort.  So they don't come through our general advertising.  I mean, we may end up with neurodiverse candidates through our normal process, but for this program in particular, the cohort is sourced and brought to the roles via Specialisterne.  The actual recruitment process is non traditional, non interview based assessment.  So it is, in the case of IBM, where we enable people to actually demonstrate their capabilities, so it's structured activities and interaction, much more role based, showing what they would do on the job with the managers as part of that process.  So completely outside of our normal process in this case.

MS BENNETT:  If I understand correctly, each of the three organisations on the panel today identify roles or areas which, in partnership with Specialisterne, they have identified as being appropriate for neurodiverse candidates or appropriately suited, perhaps, to neurodiverse candidates, and you partner with Specialisterne to identify candidates, and then in the case of IBM and Telstra, there's a multi week process     I will come to you in a moment, Mr Nelson     there's a multi week process where the application process really takes place through that showcase process.  Is that a fair summary at least for Telstra and IBM?

MS BADENOCH:  Yes.

MS BENNETT:  Mr Nelson, I think you want to update your answer about the way in which you you've changed your recruitment process, can you ---

MR NELSON:  Yes, I possibly misunderstood your question, I apologise.  So it is almost a mirror of Telstra and IBM process in terms of hiring Specialisterne.

COMMISSIONER RYAN:  Can I ask, is this done virtually or is it done one on one?  I didn't quite catch that.

MS BENNETT:  I will ask Ms Lewis first.

Is it one on one or is it virtual?

MS LEWIS:  At the current stage it is virtual ---

MS BENNETT:  That is because of COVID?

MS LEWIS:  Yes, correct.

MS BENNETT:  Ms Badenoch?
 

MS BADENOCH:  Likewise.  It would normally be a face to face process but it has needed to be virtual given current circumstances.

MS BENNETT:  Is that the same for you, Mr Nelson?

MR NELSON:  Originally it was face to face but will be virtual.

COMMISSIONER RYAN:  It is one recruiter to a candidate, is that right?

MR NELSON:  There are workshop activities as well that involve a number of people so we can identify how people collaborate and how they work as a part of team also.  It's not all singular or individual.

MS BENNETT:  I see a lot of nodding; is that a fair description, Ms Badenoch and Ms Lewis?

MS LEWIS:  Yes.

MS BADENOCH:  Yes, correct.

CHAIR:  Do the candidates get paid while this is going on?

MS LEWIS:  Yes.

CHAIR:  Telstra?

MS BADENOCH:  I have to confirm.  I would have to come back to you on that question, I don't believe they do get paid during the assessment process, no.

MS BENNETT:  Mr Nelson, can you tell us whether the candidates are paid during the process?

MR NELSON:  I don't believe they do.

MS BENNETT:  Is Services Australia a four week process as well?

MR NELSON:  Yes.

MS BENNETT:  These schemes are for recruitment into specific roles, is that right?

MR NELSON:  Yes.

MS LEWIS:  That's correct.

MS BENNETT:  I want to just distinguish that from --- it's not available for somebody     let me go back.
 

If you have a role in HR and somebody contacts you and says --- and I will direct this first to you, Ms Badenoch --- "I am neurodiverse and I would like to showcase my abilities to you in the way that you do in your neurodiversity recruitment stream but for a HR role", is that available?

MS BADENOCH:  We certainly can effectively do that.  The biggest difference for the neurodiverse recruitment, which is a very targeted recruitment where we are only opening those jobs to neurodiverse candidates, so in fact we are not opening it to broader applicants and the pool is sourced by Specialisterne.  Where we advertise a job and someone puts their hand up and says ”I'm a neurodiverse candidate, I want to join your HR function“, we will then talk to them about the process they need to help them to apply for that job.  So we will do a whole range of different things, whether it's moving away from traditional interview if we need to, and we have examples of that in our general recruitment as well, but the difference is they are then in a general candidate pool; while we might accommodate their needs differently, they are in amongst a whole range of candidates, whereas with a neurodiverse program, it is specifically a neurodiversity cohort being applied to a specific number of roles.

MS BENNETT:  Ms Lewis, I think IBM's program has been running the longest of the three on the panel today.  Have you identified some changes that can be scaled across your general recruitment to accommodate neurodiverse individuals more broadly?

MS LEWIS:  Yes.  I think what we've discovered is we need to, at the forefront, identify those that are neurodiverse so we can tailor the mainstream interviewing process to make sure that they accommodate, similar to what Alex from Telstra had mentioned, so we can accommodate that.  Now we do have an accommodation process, if they are identified, if they want to identify they need accommodation.  We would, for example, in some of our roles, if we are to do an assessment, we would consider if they had put in an accommodation, we either would potentially miss the assessment for those people, skip that or allow them a longer period of time to respond to that assessment.

And so we've done some adjustments like that as we've been going through this program and process of adjusting even our mainstream to be more adaptable to make sure that, you know, all candidates can come through not only mainstreams but also our pathway programs.

MS BENNETT:  Mr Nelson, can you tell the Commission if you've observed any cultural change in your organisation from the implementation of this program, accepting it's at an early stage?

MR NELSON:  I think we can and the feedback from those managers and those sort of divisions or areas within the business, you can actually see a change in the organisation.  I think that comes through in their broader employee survey/Census results that we see.  I think there is also a broadening acceptance of neurodiverse  
people across the organisation because we are talking more about neurodiversity, which is great.

We also have channels and options for people to join us through using our recruitability program that's available in the APS and also through our affirmative measures processes which are only available to people with disability, which we are starting to use more often which gives greater opportunity for people to be engaged.

MS BENNETT:  So I can hear from the evidence that the three panelists are giving that this is considered to have been a really positive program.  Is that fair, Ms Badenoch?

MS BADENOCH:  Yes, absolutely.  I think it has been positive both in terms of the quality and skills that we are able to bring into the organisation but I think also too what you just alluded to, it's another step in learning as an organisation where we can adjust our processes and enhance our processes to make our organisation more accessible to all candidates.

MS BENNETT:  And I saw the others nodding vigorously and so I will accept that as an answer that applies equally to Ms Lewis and Mr Nelson?  I would like to ask about something that has been troubling me about the program.  And I'm not sure if it has been considered by your organisations or indeed if it's even an issue.  It's this.  Can I perhaps illustrate it by reference to a document.  It comes from, Ms Badenoch, your statement and it's document TEL.0001.00028_0004.  This document I understand to be an explainer about what the program is.  Is that right?

MS BADENOCH:  Yes, that's correct.

MS BENNETT:  The PowerPoint to explain what the program is.  I want to read a couple of points from this page 6.  The first star on the left, I will read it slowly.  If it could be enhanced so you could see it.  I will read it out, Chair.  It says:

Many people with neurological conditions such as Autism Spectrum Disorder, dyspraxia, and dyslexia have extraordinary skills including in pattern recognition, memory and mathematics.  But the neurodiverse population remains largely untapped.  In particular autistic people.

I just want to read another example on the same page.  It says on the opposite page:

Autistic teams undertaking software testing roles in an Australian Federal Government department demonstrated 30 per cent higher productivity.

I just wanted to pause.  There are examples of this throughout the materials of I think all of the organisations who provided evidence and who run programs of this kind.  Do you have a concern that the establishment of a neurodiverse recruitment program has the potential to send a message that the recruitment of people with disability is valued only when there is immeasurable increase in output?
 

MS BADENOCH:  I think that's a fair and relevant question to raise.  I don't think so.  If you look at our broader position of diversity and inclusion at Telstra and employing people with a disability, it is not all positioned around productivity.  It's positioned around a whole range of things.  One, we actually do genuinely believe that to tap into the talent pool means tapping into the whole talent pool, not just part of it.

We believe that our employee base should represent the communities in which we operate.  We sell products and services to the full community.  So to do that effectively, to develop the right products and services, we actually need to understand the needs of all of our customers and we actually genuinely have a commitment to accessibility.

So actually understanding whether it's our products and services, whether it's information we put on a website or develop as an online tool, that we understand how that needs to be built to support the full inclusion of the communities that we serve.  To do that well, we actually believe we need a very diverse workforce.  So that's not productivity in its pure sort of productivity sense.  Is it making us a better business, that better understands its customers and better serves its customers?  Absolutely.  It is having the right mix of workforce, it is about being a better organisation but not just from a productivity sense.  Equally from a cultural one.  Equally from a customer service one.

COMMISSIONER RYAN:  Can I ask a question just related to the same page.  It might be you were going to ask it anyway.  A lot of the jobs you've got listed there can be largely summarised as IT related.  Are you at all worried we could be stereotyping people with neurodiversity, that their best use is behind the screen, you know, at the back end of the office working on the computer?

MS BADENOCH:  So there is two answers to that, I think.  One in working with an organisation like Specialisterne, they've absolutely guided to certain roles being actually able to place more successful, to place neurodiverse candidates into.  We equally advertise all of our roles.  As I mentioned before, we actually get a broad base of candidates with a range of disabilities, including neurodiverse candidates into other roles.  So we are talking purely about this very narrow program.

I think one of the things that is critical when you lift up beyond this one program, is to look at what organisations are doing to attract employees with a disability to their broader candidate pool.  If you only ran programs that have channelled to specific jobs with specific candidate pools, I think long term you would run that risk, absolutely.

But I think what this is doing is enabling us to augment and learn about how we run better recruitment processes.  Over time we should be translating that to how we recruit on our broad base, not running separate specialised programs.  Because I think that would open up candidates to all of our jobs.  But equally part of these  
programs are training our managers to be more effective at supporting people with a range of disabilities, including neurodiverse candidates into jobs.  So this is, for me, a transition point as opposed to an end state.  Because if you did it as an end state, yes, I think you would be running that risk.

MS BENNETT:  So a transition point to a situation where the kinds of adjustments that you make is part of a neurodiversity recruitment are more readily available across the board at Telstra.  Is that fair?

MS BADENOCH:  Yes, absolutely.  They are available today.  If someone actually identifies as needing those supports, you can get them today.  But I think it has us augment our broader recruitment process to move away from some or the more traditional interview base.  Because not everyone self identifies, for one.  Two, I think we need to build the confidence so people feel that it is a culture that is inclusive and shows its willingness, its commitment to actually employing a broad diverse base of employers.

CHAIR:  Ms Badenoch, if someone is recruited under the neurodiverse recruitment program, where do they work?  Do they work with people who are not necessarily neurodiverse or is there a separate section?  How does it work?

MS BADENOCH:  They go into all parts of our business.  So it's really just that there are certain roles that have been tagged to actually bring those candidates into.  They go into our broad base employee population, working in teams.  But the difference is that they have a supported process in entering into the organisation, so making sure that they have more successful entry and that their line managers are trained to actually have some additional understanding of their unique needs and support to make them successful.  Other than that they are very much in the broad base population of our workforce.

CHAIR:  Do their co workers normally know they've been recruited through the neurodiverse recruitment program?

MS BADENOCH:  Where it is specifically through the neurodiverse program they would most likely know, yes.  We would have neurodiverse candidates enter not through this program where that would not necessarily be known unless someone chose for it to be known.

CHAIR:  Yes.  Thank you.

MS BENNETT:  So, Ms Lewis, I'm conscious of the time but I'm interested if IBM perceives a risk of stereotype or silo.  I'm not suggesting it's happening or happened.  I'm wondering if it's a risk that has been identified and mitigated or not?

MS LEWIS:  The thing with neurodiversity, it's interesting because we have found most neurodivergent candidates have come through mainstream recruitment processes.  And so that is fabulous to see, right.  So in regards to, I suppose, exactly  
how Alex explained it from Telstra, you know, they could be hired into any role that they are suited for.

We look at the ability of an individual, not the disability.  We are looking for people that can, you know, showcase their ability and skill set.  So even though the neurodiversity program, and I know that is what we are focused on here, does focus on cloud engineers and cyber security and testing and software engineers and that, they are specific roles.

As we go through Specialisterne, that is what we are looking for at that particular time.  So that is what we are hiring through that neurodiversity program.  We have P Tech available and mainstream.  Even graduate programs where we have neurodiverse candidates coming through those programs as well into open roles.

MS BENNETT:  So it's fair to say you don't see it as a risk in the context of your overall organisation or you think you've got structures in place to manage that risk?

MS LEWIS:  We have structures in place.  And especially with the rollout of the extensive training that we have available for not only employees but for managers and to make sure that everyone is self aware and we are aware about diversity and inclusion.  And so I think with all of our training modules as well, as well as our business resource groups and our active engagement in the community I think is really important to help drive that awareness across IBM as an organisation.

MS BENNETT:  Mr Nelson, do you agree, is there a risk of stereotype and siloing people who come through this program?

MR NELSON:  Thank you for the question.  I think it may well have been a risk in the past.  I think it's less of a risk now because there is a growing understanding and acceptance of the role of people from neurodivergent people, if you like, and what they can bring to an organisation.  We are also rolling out significant numbers of learning modules and other supports for managers to try and reverse any inability for them to manage or build their confidence and capability to manage people across the organisation regardless of whether they are neurodiverse or have other disability or come from a cultural background which is different or other.  So we're becoming smarter at building the capability of our managers, I think, in being more excepting.

MS BENNETT:  Chair, I have no further questions for these witnesses.

CHAIR:  Yes.  Thank you.  I will just ask the other Commissioners if they have any questions.

First, Commissioner Galbally.

COMMISSIONER GALBALLY:  Thank you for your presentations.  No questions, thank you.

 
CHAIR:  Thank you.  Commissioner Ryan.

COMMISSIONER RYAN:  I asked mine on the way through, so no, thank you.

QUESTIONS BY THE COMMISSION

CHAIR:  With the neurodiverse recruitment program, the Autism Spectrum is a very broad spectrum.  It can range from somebody who might have a relatively minor set of issues to somebody who obviously will have more issues.  Is there any clear indication of where the recruits fit on that spectrum generally speaking?

MS BENNETT:  Perhaps we might start with Ms Badenoch.

CHAIR:  I'm thinking of whether most of them, for example, you would categorise as having Asperger's to a limited or greater extent or whether they are further along the Autism Spectrum?

MS BADENOCH:  I think with this program it actually varies but it's generally further along the spectrum.  So it is actually probably more pronounced sort of variations in the support that they need.  Whereas at the lower end of the spectrum, that's probably where you see more entrants through our standard general recruitment processes.  So it will vary but I would say sort of mid to higher end of the spectrum is what this program is focused on.

MS BENNETT:  Ms Lewis?

MS LEWIS:  Yes, I would tend to agree that it would be from mid because it would be more of the mid to high in the spectrum coming through this program.  And as Ms Badenoch from Telstra alluded to, that neurodiverse candidates will come through other ways in the recruitment process.  So, you know, there's availability in regards to them being able to, you know, come through the recruitment process in different means.

MS BENNETT:  Mr Nelson.

MR NELSON:  Yes, look I think there is a variation in terms of who comes through the Aurora Program for us.  I think the higher functioning people do tend to come through normal recruitment processes.  But in saying that too and just to give some confidence that people aren't stereotyped if you like into a particular role, we've seen a number of our 11 people already move into higher duties, into different parts of the organisation, into a graduate program and one has left and gone into another part of another Federal Government organisation as well.  So people do move around and they do get opportunities outside the particular program itself.

CHAIR:  Thank you.  I will assume in the usual way that none of the represented  
parties have any questions to ask of the members of the panel who have just given evidence and I shall pause for just a moment to make sure that's right.  That's long enough to pause.  Thank you very much for your evidence, Mr Nelson, Ms Badenoch and Ms Lewis.  It has been very interesting to hear about the programs that you've each introduced or at least your companies have and we thank you for your evidence and for the statements you've provided.  Thank you.

THE WITNESSES WITHDREW

CHAIR:  Ms Bennett, is there anything else we need to do?  You are going to tender a whole lot more documents?

MS BENNETT:  I am, Chair, and the only aspect in which I'm going to depart from the list that has been handed to the Chair, I think the statement of Ms Lewis, her being the witness present, ought to go in first with the remaining attachments and the statement of Ms Le Page as attachments to that.  Is that a convenient course?

CHAIR:  Yes.  By all means.

MS BENNETT:  In which case I tender the statement of Ms Lewis of 27 October 2021 as Exhibit 19 12 with the attachments, including the statement of Ms Keri Le Page marked consecutively 19 12.1 through to 19 12.16.

Then, the statement of Ms Alexandra Badenoch dated 28 June 2021 to be tendered as Exhibit 19 13 with the attachments numbering 19 13.1 through to 19 13.25.  Then supplementary statement of Ms Badenoch dated 25 October 2021 as Exhibit 19 14.

And the statement of Mr Michael Nelson of 25 June 2021 as 19 15.

CHAIR:  Yes.  The documents to which Ms Bennett referred will be admitted into evidence and given the exhibit numbers she has indicated and I will initial the document that records that.

EXHIBIT #19 12   STATEMENT OF MS BELINDA LEWIS DATED 27 OCTOBER 2021

EXHIBITS #19 12.1 TO #19 12.16   ANNEXURES TO STATEMENT OF MS BELINDA LEWIS INCLUDING STATEMENT OF MS KERYN (KERI) LE PAGE

EXHIBIT #19 13   STATEMENT OF MS ALEXANDRA BADENOCH DATED 27 OCTOBER 2021
 

EXHIBITS #19 13.1 TO #19 13.25   ANNEXURES TO STATEMENT OF MS ALEXANDRA BADENOCH

EXHIBIT #19 14   SUPPLEMENTARY STATEMENT OF MS ALEXANDRA BADENOCH

EXHIBIT #19 15   STATEMENT OF MR MICHAEL NELSON

MS BENNETT:  Chair, I think Ms Wong would seek to say something.

CHAIR:  Yes, Ms Wong.

MS WONG:  Yes, it's the case, if I could just indicate, that IBM has sought non publication orders in respect of some of the attachments to the statement, for example, of Ms Lewis and also Ms Le Page which was tendered as and attachment to Ms Lewis' statement.  We have notified the Commission of precisely which documents they are.

CHAIR:  Yes, I will just inquire of Ms Bennett   

MS BENNETT:  Those have been excluded from the list I have just tendered.  The documents over which IBM have raised a claim of confidentiality have not been included in the tender.

MS WONG:  Thank you.

CHAIR:  I should have asked for the appearances on behalf of IBM and Telstra.  We will take you as having given your appearance, Ms Wong.

MS WONG:  Very grateful.  Thank you, Commissioner.

CHAIR:  Ms Bennett, is there anything else we need to do?

MS BENNETT:  No, Chair.

CHAIR:  We will adjourn until 10 o'clock tomorrow.  You are about to tell us what will happen tomorrow?

MS BENNETT:  Yes, Chair.  There will be a number of panels around work health and safety issues starting with the private sector employers at 10 am.  Public sector employers to follow and in the afternoon we have Safe Work Australia, WorkSafe Victoria and Comcare giving evidence on a panel.  And then finally Lendlease and  
Australia Post will give evidence on the panel in the final session.

CHAIR:  By that time we should have worked our way through the entire commercial structure of this country.

MS BENNETT:  That is the aim, Chair.

CHAIR:  All right.  Thank you.  We will adjourn until 10 o'clock tomorrow morning.

HEARING ADJOURNED AT 4.03 PM UNTIL WEDNESDAY,24 NOVEMBER 2021 AT 10.00 AM (AEST).