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Public hearing 19: Measures taken by employers and regulators to respond to the systemic barriers to open employment for people with disability, Virtual - Day 3

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Publication date

CHAIR:  Good morning, everyone, and welcome to the third day of Public Hearing 19 of the Royal Commission, dealing with the measures taken by employers and regulators to respond to the systemic barriers to open employment for people with disability.

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

Yes, Ms Dowsett.

MS DOWSETT:  Thank you, Commissioner.  This morning we begin with a panel on workplace adjustments and you will hear witnesses from four employers, Accenture, RMIT, McDonald's and NAB.  In respect of those parties, I note that RMIT wishes to announce its appearance.

CHAIR:  Is there a further appearance that has not previously been announced?  More specifically, is there an appearance for RMIT?

MS DOWSETT:  He should be coming up on the screen now.

CHAIR:  We don't seem to have anybody, any legal representative for RMIT appearing on the screen.  So may I ask again, whether there is any appearance to be announced on behalf of RMIT?  If not, we might just proceed and any appearance can be ---

COMMISSIONER RYAN:  I think he is trying to.

CHAIR:  There is a head that is appearing, yes.

MR CARR:  Good morning, Chair.  May it please the Commission, my name is Lachlan Carr, C A R R, and I appear for RMIT.

CHAIR:  Thank you, Mr Carr.  You can remove your head from the screen.

Yes, Ms Dowsett.







MS DOWSETT:  I begin by asking the witnesses to introduce themselves, and beginning with Ms Kruger from Accenture.

You are Sarah Kruger, the Australia and New Zealand Managing Director, Accenture Australia?

MS KRUGER:  Yes, that's correct, so I lead all people and culture related activities in Australia and New Zealand.

MS DOWSETT:  Thank you.  You prepared a statement for this Royal Commission dated June 2021, a supplementary statement dated 27 October 2021   


MS DOWSETT:  --- and corrigendum dated 22 November 2021?


MS DOWSETT:  You have copies of those documents there with you today?


MS DOWSETT:  Taken collectively, are they true and correct?


MS DOWSETT:  We see from your supplementary statement from 25 October 2021, Accenture's HR system recorded 47 people who identify as a person with a disability?

MS KRUGER:  Yes.  That number is now at 81.

MS DOWSETT:  That's an increase from 9 people as at 24 May 2021?


MS DOWSETT:  Are you able to tell the Royal Commission why that number has  
increased?  Are they new hires or just a change in the system?

MS KRUGER:  So they're not new hires.  It was in May 2021 that we launched our ability for people to be able to identify as having a disability in Workday which is our HR system, and what we've been doing is continuously running awareness campaigns and promotions encouraging people to identify.  So self identification is voluntary, and so the uptake is about more people becoming aware of it and being more confident in being able to identify.

MS DOWSETT:  Thank you.

Turning to you, Ms Marshall, you are Meegan Marshall, the Chief People Officer, RMIT?

MS MARSHALL:  That's correct.

MS DOWSETT:  You prepared a statement for this Royal Commission dated 11 June 2021?


MS DOWSETT:  That statement is true and correct?

MS MARSHALL:  That's correct.

MS DOWSETT:  As indicated by Ms Eastman in her opening on Monday, RMIT's HR system records 22 employees who identify as a person with a disability?

MS MARSHALL:  Yes, that was in June.  It's now up at 68.

MS DOWSETT:  The same question for you as I asked of Ms Kruger, are they new hires or a change in recording?

MS MARSHALL:  We also launched the Workday system in June, and since that time it's much easier for employees to self identify if they choose to.

MS DOWSETT:  Thank you.  Turning to you, Mr Cawood, you are Vice President and General Counsel of McDonald's Australia?

MR CAWOOD:  Correct.

MS DOWSETT:  You prepared a statement for this Royal Commission dated 21 June 2021?


MS DOWSETT:  And a supplementary statement dated 25 October 2021?


MS DOWSETT:  Taken together, are the contents of those statements true and correct?

MR CAWOOD:  They are.

MS DOWSETT:  In her opening on Monday, Ms Eastman noted that McDonald's told us their HR system does not record the number of people with disability that it employees.  That's correct, isn't it?

MR CAWOOD:  That is correct.  We have a system which records, allows an applicant who we do hire, at the start of the recruitment process, to self identify as to whether or not they have a disability and if so what support they need.

MS DOWSETT:  Yes, I was coming to that.  You've told us that in the period from January 2010 to December 2020, 6,214 candidates who were ultimately hired by McDonald's disclosed disability on their application form?

MR CAWOOD:  That's correct.

MS DOWSETT:  In the period December 2020 to 9 June 2021, a further 1,498 candidates who were ultimately employed disclosed disability on their application form?

MR CAWOOD:  That's correct.

MS DOWSETT:  But you aren't able to say, out of all of those people across more than a decade, how many are currently employed by McDonald's?

MR CAWOOD:  No, we're not.

MS DOWSETT:  When we're speaking of McDonald's in these figures, we're referring to both franchised restaurants and to those operated by McDonald's itself?

MR CAWOOD:  That is correct.

MS DOWSETT:  Finally turning to you, Ms Kesoglou, firstly, am I pronouncing that correctly?


MS DOWSETT:  You are Androniki Kesoglou, Executive Culture Engagement and Inclusion at NAB?

MS KESOGLOU:  That's correct.

MS DOWSETT:  You prepared a statement for this Royal Commission dated of 21 June 2021?

MS KESOGLOU:  That's correct.

MS DOWSETT:  The contents of that statement are true and correct?


MS DOWSETT:  As with McDonald's, in her opening on Monday, Ms Eastman noted that your HR system doesn't record the number of people with disability; that's correct?

MS KESOGLOU:  That's correct.

MS DOWSETT:  In your statement, you noted that in 2020, 3.3 per cent of NAB's permanent employees identify as a person with disability?

MS KESOGLOU:  That's correct.

MS DOWSETT:  Are you able to provide a figure for employees other than permanent employees, like part times and casuals?

MS KESOGLOU:  No, I'm not.

MS DOWSETT:  Thank you.

I'm going to turn now to the focus of today's panel, this morning's panel, which is workplace adjustment and, Commissioners, you will have noted that in the evidence, a variety of terms are used.  We have "workplace adjustments", "reasonable adjustments" and "reasonable accommodations".  In this panel, when we talk about adjustments, I intend it to refer to all of those categories, less concerned with what the label is, and more concerned with what is done.

So if I could start with you, Mr Cawood, the data that we have just spoken about, about the number of people ultimately hired by McDonald's who disclose disability on their application form indicates a relatively high, in terms of the employers who have given evidence to this Royal Commission, a relatively high participation rate, and you've noted that over the past decade that participation rate is increasing.  That's correct?

MR CAWOOD:  That's correct.

MS DOWSETT:  Yet you have no formal decision making process for the making of adjustments and no policy to guide that decision making process; is that correct?

MR CAWOOD:  --- (overspeaking) --- adjustment policy as such.  We certainly have many policies of a more general nature that I think touch on those issues.  Policies around inclusion, fairness and similar (audio distorted) policies like that.  We talk about there are a large organisation, McDonald's Australia is formally an RTO, we provide thousands of hours of training each year.  We certainly have specific policies around inclusion and adjustments, and each of those RTOs that do training are specifically trained in making adjustments to ensure that the particular employees, no matter what their capabilities are, what additional support they need, are able to continue to run from McDonald's and through our training.  So in that space we are getting clear and a very focused area around adjustments, but there are certainly many, many (audio distorted) of adjustments that McDonald's makes to bring in, to our employment, people with disabilities, as I think you referred to before.

There are almost 1500 people in the last six months, in the first six months of this year, they identified as having a disability.  We asked in that same recruitment or recruitment tool to identify what additional support they may need in order to carry out the tasks of their job and in many cases they identify what additional support they may need.  But, yes, that's I guess a fairly long response to that question.

MS DOWSETT:  Just to be clear, I'm not talking about your RTO, your registered training organisation side, I'm talking about your employment side.  So correct me if I'm wrong, but is it not the case that every employee of McDonald's goes through the RTO, is it?

MR CAWOOD:  No.  Everyone has (audio distorted).

MS DOWSETT:  I'm sorry, I didn't catch the end of that.

MR CAWOOD:  All our employees have an opportunity to go through our RTO training, do thousands and thousands of hours each year.  Many people with disabilities would go through that process, but not every employee does.

CHAIR:  Mr Cawood, I'm told that your voice is somewhat muffled.  It is coming through very loudly but it is somewhat muffled and I'm told that it's at probably your end.  I'm not sure if anything can be done to make your voice a little less cloudy, as it were.

MR CAWOOD:  I will try and speak a little bit more clearly perhaps, it could well be my voice rather than the system.

CHAIR:  No, I suspect it's the system, but anyway, we will carry on.

MS DOWSETT:  The material you provided to the Royal Commission in terms of the training that's provided to managers, to the people who are making the hiring decisions in restaurants, that training does not address the making of workplace adjustments, does it?

MR CAWOOD:  It certainly speaks of the other, ie a respectful workplace policy that deals with inclusion and (audio distorted).  So it speaks to the determinations of adjustments and the need to accommodate all people and to include all people in the workforce.  But you're right, we don't have a specific policy or training to those managers that addresses workplace adjustments to those with disabilities that need it.

MS DOWSETT:  So how does a restaurant manager come to know their legal obligations around making workplace adjustments?

MR CAWOOD:  As I say, we've got a lot of longevity planning that provides for that.  We have a long history of providing opportunities for people with disabilities in our restaurants, both our corporate owned restaurants, which  - we call them the “corpco restaurants”, and there are franchising restaurants.  The hiring decisions are made at the restaurants.  We do see many of them do in fact make adjustments to people with disabilities.  We believe that has made a positive impact on those and more importantly, they have made a positive and lasting impact on our organisation.  There would be rarely a restaurant in our system in Australia which doesn't have a number of people with disabilities working in it and in many of those instances there are workplace adjustments that have been made.

MS DOWSETT:  Thank you, Mr Cawood, I'm going to move on for the moment while we see if we can do something about that audio.

CHAIR:  Yes, I've been advised that if we leave Mr Cawood there, you can stay there but not speak, then hopefully we will be able to correct the sound from your end, Mr Cawood, so just stay where you are and we will just ask questions of other members of the panel.  Thank you.

MS DOWSETT:  Thank you, Chair.

Ms Marshall, turning to you and to RMIT, you say in your statement that RMIT takes a societal approach, and that it is intended to be proactive and to remove the need for staff to make requests for adjustments.  Does that accurately describe RMIT's position?


MS DOWSETT:  You've provided the Commission with a copy of RMIT's Adjustment Policy?


MS DOWSETT:  Commissioners, you will find that in Bundle B at Tab 87.  This adjustment policy is not limited to people with disability.  Is that correct, Ms Marshall?

MS MARSHALL:  That's correct, it may be for people who have a temporary illness  
or injury as well other needs.

MS DOWSETT:  It's also, it says in Section 1 context, that it is for people who seek to balance their work life and family needs?

MS MARSHALL:  That's right, yes.

MS DOWSETT:  Just to be clear, is that in relation to injury, illness and disability or is it work life and family needs separate from those matters?

MS MARSHALL:  It could be in relation to the illness or disability or it could be a stand-alone request for work life and family needs.  We also have a flexible working policy that would cover other needs in relation to work, life and working hours.

MS DOWSETT:  In that policy in Section 1 again, paragraph 3, it states that RMIT applies a criterion of reasonableness in all circumstances?

MS MARSHALL:  Yes, that's correct.

MS DOWSETT:  Do you see that?


MS DOWSETT:  The reasonableness of an adjustment is not the test under either the Disability Discrimination Act or the Equal Opportunity Act in Victoria.  Would you agree with that?

MS MARSHALL:  Yes, I guess the way we look at it is whether it's reasonable in the circumstances, and we would align with the Disability Discrimination Act in terms of our assessments.  We haven't rejected any requests for adjustment in the last two years so we've accepted all requests that have come through.

MS DOWSETT:  You say at paragraph 10 of the policy that the university will provide an adjustment where staff experience illness, injury or disability that impacts upon their ability to safely undertake the inherent requirements of their job?

MS MARSHALL:  That's correct.

MS DOWSETT:  Can you tell the Royal Commission who identifies the inherent requirements of a job and when that happens?

MS MARSHALL:  So during the recruitment process, and in the position to identify what are the inherent requirements of the role, that's done by the manager at the time of, you know, creating the role.

MS DOWSETT:  When are they communicated to employees?

MS MARSHALL:  They are communicated at the time of recruitment or if there is a change to the role, they are communicated to the employee at that time.

MS DOWSETT:  Where a disability impacts upon a person's ability to safely undertake the inherent requirements of their role, that's not consistent with taking a societal approach and being proactive, is it?

MS MARSHALL:  As we take a first step is to be proactive in terms of our universal design principles and designing for dignity.  So that's our first approach, to look at our physical environment, to look at our technology, and then look at our ways of working to remove any barriers, we're working with the Australian Network on Disability, that's what we've been looking at, to remove systemic barriers.  Then we do consider all requests for adjustment whether that's related to a person with a disability or any other reason.  As I said before, we haven't rejected any requests in the last two years.

MS DOWSETT:  So the motivating factor for RMIT in its assessment of requests for adjustment, it isn't just inherent requirements, is that what you are telling the Royal Commission?

MS MARSHALL:  Our motivating desire is to give employees a good experience and making sure that we've removed any barriers that we can for those employees for participation in our workforce.

MS DOWSETT:  Would it be appropriate to amend paragraph 10 to provide that?

MS MARSHALL:  Yes.  Thank you.  I will take that on notice as something we can look at.

MS DOWSETT:  Thank you.

Ms Kesoglou, turning to you now, you've also provided the Royal Commission with NAB's policies and a range of supporting documents?

MS KESOGLOU:  Yes, that's correct.

MS DOWSETT:  Commissioners, for your information you will find those in Bundle B at Tabs 71, 72 and 73.  I don't take you there right now.  In your policy and supporting documents, NAB refers to adjustments as something which would allow a person to perform the inherent or essential requirements of their job safely, but you also refer to broader participation in the workplace.  Is that correct?

MS KESOGLOU:  Yes, that's correct.

MS DOWSETT:  So what would you tell the Royal Commission is the motivating factor behind NAB's policy?

MS KESOGLOU:  The motivating factor behind NAB's policy is really to provide an opportunity for all people with the skills and capabilities to undertake their roles, and to have equal opportunity in being productive and also progressing their careers.

MS DOWSETT:  In terms of progressing their careers, how do you know if you're meeting that goal if you don't record whether people have a disability and you're not following them through the talent pipeline, if I can call it that?

MS KESOGLOU:  So we incorporate a question in our engagement survey on an annual basis that asks all our employees if they have a disability, yes or no, and if they have requested an adjustment, yes or no.  And then if their adjustment has been made, are they satisfied with that.  And then we look at those results across our engagement questions.  So we look to see if there's any variation in how engaged people who identify with disability are in relation to the rest of the population.

MS DOWSETT:  What does that survey tell you?  Are they engaged?

MS KESOGLOU:  They are engaged --- in some pockets of the organisation they are just as engaged, in other pockets of the organisation they are not as engaged.  So it gives us an indication of what else we need to be doing.

MS DOWSETT:  And what else are you doing?

MS KESOGLOU:  So we are providing information and heat maps around these results to all our leaders who have access to this, and then we encourage and support our leaders in having conversations around workplace adjustments and what else is required for employees to be productive and engaged in their day to day work.

MS DOWSETT:  The supporting material that you've provided the Royal Commission that goes with NAB's policy refers to a best practice of a people leader having a conversation with team members every month to inquire if they need any adjustment to assist them to perform the tasks and requirements of their job.

MS KESOGLOU:  That's correct.

MS DOWSETT:  Firstly, a “people leader”, that's a supervisor or a manager; is that correct?

MS KESOGLOU:  That's correct, yes.

MS DOWSETT:  If your best practice is to have that conversation monthly with every team member, do you know how often that best practice is met?

MS KESOGLOU:  No, I don't know the answer to that.

MS DOWSETT:  Is that something that could be a KPI for your people leaders?

MS KESOGLOU:  Can you ask the question again, please.

MS DOWSETT:  I will ask the question again but I think you perhaps might need me to rephrase it.  What I want to know is whether meeting this best practice of having a monthly conversation with every team member about whether they need an adjustment, if you made that a KPI or a performance indicator for your people leaders, could that improve your tracking against best practice?

MS KESOGLOU:  We could but it would be difficult to track that for every people leader across NAB.  We do actually encourage our leaders through all our leadership training, as well as our performance management training, that people have regular conversations with their employees around how they're tracking, both from a goal perspective but also from a performance, and what else we can do to support them.

MS DOWSETT:  So the heat maps you were talking about before where people feel they are not as engaged, do you think there's a correlation between the having or not having of these monthly conversations and the level of engagement?

MS KESOGLOU:  There could be.  Yes.

MS DOWSETT:  Thank you.

Turning to you now, Ms Kruger, Accenture has also provided the Royal Commission with its reasonable accommodations policy?


MS DOWSETT:  Commissioners, for your information that's at Tab B/3A.

In that policy, Ms Kruger, Accenture says, refers to a reasonable accommodation as a modification that enables a person to perform work effectively.


MS DOWSETT:  Should the Royal Commission take from that that Accenture takes a broader view that it doesn't see adjustments linked only to inherent requirements but to broader participation in the workplace?

MS KRUGER:  Yes, because our intent is that everybody is included and able to work at their best.

MS DOWSETT:  And is that intent stated in your policy?

MS KRUGER:  Yes.  The intents are stated in our policies in terms of respecting the individual, behaving professionally, and some of those different types of policies.

MS DOWSETT:  So when a person in Accenture seeks a workplace adjustment, as I  
understand it from your evidence there are a number of pathways.  You could come through what's called the Disability Accommodation Request Tool?


MS DOWSETT:  You could make a request through the Health, Safety and Wellbeing team?

MS KRUGER:  Yes.  Yes.

MS DOWSETT:  And a you could also have an informal arrangement with your direct manager or supervisor?

MS KRUGER:  Yes, that's correct.

MS DOWSETT:  Leaving aside the informal arrangement, who makes the decisions when a request is made through the DART or through the Health, Safety and Wellbeing team?

MS KRUGER:  Our Occupational Health and Wellbeing team - Safety and Wellbeing team - makes that.  We have clinical practitioners in that team who help us make those assessments.

MS DOWSETT:  What training are those people given about their legal obligations in relation     or Accenture's legal obligations in relation to workplace adjustments?

MS KRUGER:  So as a part of our Employee Relations team, they receive extensive on the job training and also access to external materials around that sort of thing, as well as a number of internal trainings that a lot of our employees undertake around codes of conduct and those sorts of things, and specific training in relation to how they conduct those assessments and how they provide support.

MS DOWSETT:  Are there guidance notes that sit behind Accenture's policies to guide this decision making process?

MS KRUGER:  There is a process that the team follows, yes.

MS DOWSETT:  And that process identifies the legal obligations?

MS KRUGER:  Yes.  That is called out in that.

MS DOWSETT:  Sorry, I missed that.

MS KRUGER:  Yes.  That is called out in that.

MS DOWSETT:  I want to return to you now, Mr Cawood, hopefully we've fixed that IT issue.  Perhaps we can have a sound check.

MR CAWOOD:  I hope so.  It looks substantially better, so hopefully it sounds a little bit better.

MS DOWSETT:  It's much better from this end.  Thank you very much.  In your statement, I'm turning now to what adjustments cost and who pays.  In your statement at paragraph 93, you gave six illustrative examples of the kinds of adjustments that McDonald's has been asked to make.  You note that one of those involved no cost.  Four of the costs were "unknown" and in the final example you noted that McDonald's paid the labour costs for additional employee training.

MR CAWOOD:  Correct.

MS DOWSETT:  Firstly, why are the costs unknown?

MR CAWOOD:  They may have taken place a while ago where the recordkeeping in relation to those particular costs might be not readily available.  They may have occurred at a franchisee restaurant where we at a corporate level may not have visibility.  85 per cent of our restaurants are owned and operated by local Australian franchisees.  We don't have access to all of their financial records, so they might be some of the reasons why the costs for those particular five examples are unknown to us at this point in time.

MS DOWSETT:  Do you provide your franchisees with support in relation to how they might go about making adjustments decisions and keeping records in relation to those decisions?

MR CAWOOD:  Not specifically.  I sought to make the point earlier, we are really proud and we've got a long history in providing opportunities for people with disabilities in our restaurants.

MS DOWSETT:  I guess ---

MR CAWOOD:  I think it's important to understand the context in which this happens.  We also, you know, review our franchisees' performance annually and biannually, and one of the measures that we, you know, look to, both during the tenure of their long franchise agreement --- it lasts for 20 years --- is their support, is their inclusive policies and practices, more practices than policies, but also more importantly their commitment to the local community.  It's one of the reasons we believe strongly in franchising and having a local operator that runs the business, being responsible for things that are going on in their restaurant, rather than someone at head office a million miles away from what's actually going on in our restaurants.  And ---

CHAIR:  Doesn't that create the issue, Mr Cawood, that you are heavily dependent on the franchisees to do the right thing in this context in respect of providing adjustments for people with disability?

MR CAWOOD:  Yes.  Of course, we are heavily dependent on it.  We recruit them very carefully.  We strongly believe in them.  We've got great ---

CHAIR:  Mr Cawood, you don't need us to give us an advertisement.  We understand you run a good operation, what we are trying to work out is: what are your policies and practices in relation to engaging people with disability, giving them support that is required under the law, and any other measures that are taken.  At the moment, I'm not entirely clear what specific measures that McDonald's, through the head office or however you describe it, takes to ensure that the conduct of franchisees, in relation specifically to disability, meets both legal requirements and aspirations that McDonald's says that it wishes to achieve.

MR CAWOOD:  As I was trying to say, we review bi annually and annually the commitment of our franchisees to various activities.

CHAIR:  How do you do that in relation to their practices as far as employing people with disability and providing adjustments to people with disability that may be required?

MR CAWOOD:  We train them.  One of their focuses needs to be their commitment to the community.  Many of them, as part of that commitment to the local community, employ significant numbers of people who have a disability.  And in many instances, there is just five examples listed that Counsel referred to, of the adjustments that have in fact been made over the course of many years.

CHAIR:  Who selected those five, Mr Cawood?

MR CAWOOD:  Me and my team, when we drafted the affidavit.

CHAIR:  Yes, and where did you select them?  How did you choose them?

MR CAWOOD:  I would have spoken to, or my team would have spoken to, a number of people that are aware of those specific instances that have occurred in the course of our operations.

CHAIR:  May we take it you were looking for good examples?

MR CAWOOD:  Of course.  I think there are many     there could be many more examples that we ---

CHAIR:  There could be if you kept records, that's true.  All right, thank you.

MR CAWOOD:  With respect, I think we do keep records.  Every single person that is employed through our online platform identifies themselves if they have a disability.

CHAIR:  Do you keep records, Mr Cawood ---


CHAIR:  --- of the requests for adjustments, whether they have been made, whether they have been declined?  Do you have those records?

MR CAWOOD:  We have records that are referred to and annexed in the affidavit of every single person that is hired who requested an adjustment.

CHAIR:  Every adjustment that is requested is recorded, is it?

MR CAWOOD:  That's correct.

CHAIR:  All right.

MR CAWOOD:  I can't recall which annexure, but that is recorded.  That's just one way in which people come into the employment of McDonald's with a disability.  The other     and that's the main way through our online smart recruiter platform.  The other way is through the many disability services providers that we use across the country.  There would be many of them, we've had a long history with them, and they bring people to our restaurants that have disabilities that wish to work for us.

MS DOWSETT:  Thank you, Mr Cawood.

CHAIR:  Thanks, Mr Cawood.  I'm going to hand it back.

MS DOWSETT:  I'm going to stop you there, there is a different hearing next year that is going to deal with Disability Employment Service providers.  We don't need to get into that.

You were just referring the Chair to the data, the records that McDonald's keeps, and you've referred to those in your statement, just to clarify, they are annexures 18 and 19 you are referring to.

Commissioners, you will find them in Tender Bundle B/58 and 59.

These are, is it fair to say, Mr Cawood, very lengthy spreadsheets in which you've recorded the details of job applicants, de identifying, but keeping in where they have identified a disability and where they have identified a need for adjustment?

MR CAWOOD:  Not job applicants, job hires.

MS DOWSETT:  Well, you get this information from their application form?

MR CAWOOD:  But these are only people that have been hired.

MS DOWSETT:  Yes.  And so the question the Chair asked you, and I'm not sure that you answered it clearly, is, is every accommodation requested in those spreadsheets, has everyone of them been provided?

MR CAWOOD:  What the spreadsheet provides is that everyone who we hired who self identified as having a disability, and it asks them on the online platform what support they may require in order to carry out their job tasks has identified in the application.  So it records what they have said they need to be accommodated.

MS DOWSETT:  Where do we find what McDonald's has done to address that request?

MR CAWOOD:  I don't have that.

CHAIR:  And where do we find what requests have been made during the course of employment by employees for adjustments once they actually get on the job?

MR CAWOOD:  I don't have that.

CHAIR:  That's the question I was asking you, Mr Cawood.  Thank you.

MS DOWSETT:  Thank you, Chair.

Ms Kesoglou, if we can move to you now.  In your statement at paragraph 15 you have provided details of the average costs of different assessments that are carried out by NAB.

MS KESOGLOU:  Yes, that's correct.

MS DOWSETT:  Is it safe to assume that following those assessments, some adjustments need to be made?

MS KESOGLOU:  Yes, that's correct.

MS DOWSETT:  You go on to say that if an adjustment costs more than $500, then an application might be made to the Employment Assistance Fund?

MS KESOGLOU:  Yes, that's correct.

MS DOWSETT:  Does NAB have any records of adjustments that were made and how much they cost, whether or not they are paid for through the Employment Assistance Fund?

MS KESOGLOU:  We don't have records for what has been paid through the Employment Assistance Fund, but we would have records of what is paid centrally, which is the cap where we do the initial assessment.  So whatever is funded through centrally that we do, we would have figures on that.  We don't have what is expensed  
through the Job Access program.

MS DOWSETT:  You haven't included those details in your statement, but is that something that you are able to provide to the Royal Commission?

MS KESOGLOU:  Yes, that would be.

MS DOWSETT:  You've referred to central funding.  Could you tell the Royal Commission what you meant by that?

MS KESOGLOU:  So the NAB's Health and Safety Management team who do the management of, I guess, any requests that come through, they would do a very early intervention assessment in testing equipment or software or any type of requirement and that cost associated with that is borne centrally through that team.

MS DOWSETT:  If an employee needs a particular piece of software or some equipment, is it paid for by a central fund or is it paid for by the branch, the work area in which the employee works?

MS KESOGLOU:  So the assessment is paid centrally, and the equipment or the modification, whatever is required, is paid by the business unit where the employee is situated and works.

MS DOWSETT:  Those records are kept about the cost of those where it's not Employment Assistance Fund, it's paid for by the bank, you have those records?

MS KESOGLOU:  We have the records of what costs we've borne from the Health and Safety team in terms of undertaking the assessment.  I'm not sure if we have records around what every part of the business, any employee, what the cost of that modification would be, as I'm not sure how that is tracked in line items across every part of the organisation.

MS DOWSETT:  Is that a question you can take on notice and come back to us about how you track it and where that information might be?


MS DOWSETT:  Thank you.

Turning to you, Ms Marshall, in RMIT's statement you didn't say anything about the cost of adjustments.  Is that information that RMIT captures?

MS MARSHALL:  We've tracked the cost of our physical building adjustments, that we've spent $3.6 million over the past five years through our property improvement program.  We don't keep a central record of the other adjustment costs because we find the majority of requests are actually in relation to flexible work, or the property changes we've identified in our statement.

MS DOWSETT:  So to be clear, flexible work wouldn't have a cost and that's why you don't track the cost of it?

MS MARSHALL:  That's correct.

MS DOWSETT:  You do refer in your statement, as you did in your answer just then, to some requests that are made for adjustments     sorry, I will begin again.  In your statement you've referred to an increase in requests for adjustment from 2020 and these were around, if I can put it broadly, working from home?

MS MARSHALL:  That's correct.

MS DOWSETT:  That reflects public health orders that were in place in Victoria as a result of COVID 19?

MS MARSHALL:  That's correct, through that process we asked all of our employees to submit a working from home form to identify whether they had any specific adjustments required or any specific needs.  Through that, we conducted online ergonomic assessments and set-up for our employees who required that, and we also couriered equipment to staff who needed it, we couriered over 900 ergonomic chairs to homes last year so that they had the right equipment at home as well as screens and other hardware dependent on needs that they identified.

MS DOWSETT:  We see from your statement that that is your entire workforce, I think it's that 6,000 odd of those adjustments.

MS MARSHALL:  That's right.

MS DOWSETT:  Let's put aside the ergonomic adjustments that we can call the work from home adjustments.  What else, what other types of adjustment is RMIT     you've told us about flexibility with no cost, the work from home adjustments.  Is there anything else?

MS MARSHALL:  We get asked for adjustments in terms of communication, so preferred communication methods.  So some staff may request emails as a preferred communication method or particular technology that assists them to engage.  So where we can, we attempt     we try to provide that as a default for all staff.  So where there is translation services, there is recordings, captioning, all those different technologies we've brought in in the last couple of years, so we were addressing the majority of technology requirements we were also getting through.  So we've done a lot of work in the technology and digital accessibility space.

MS DOWSETT:  When you say for all employees, so that's a global change?

MS MARSHALL:  That's correct.

MS DOWSETT:  Are there any changes of that kind or any other types of adjustments that are made for a particular person?

MS MARSHALL:  That's correct.  In the last     through 2020 and 2021 we've had, I believe, 30 adjustments have referenced disability specifically that weren't able to be accommodated through our digital accessibility premises.  So specific requests.  Usually that was for a specific type of technology that was required for that individual.

MS DOWSETT:  When you say they weren't able to be accommodated, is that at all or just that global ---

MS MARSHALL:  Yes, so we obviously are trying to, as much as possible, make this proactive so our staff don't have even have to ask.  We're attempting to do that but there will inevitably be occasions where we have to look at a new technology or support where there's a specific need that we haven't been able to provide in our universal approach.

MS DOWSETT:  So sticking with the theme of cost just for the moment, were there any that were able to be provided and where we would find the cost of those?

MS MARSHALL:  We've provided everything that has been asked for in the last two years that I've gotten.  The costs, some of them would be handled centrally.  Where we can, if there is a request to update a system or provide a technology we will try and make that available universally.  This -  that's how we approach it:  “would it be beneficial to other employees?”  The cost would be through the central team, the Property team, and then our IT resources as well.  I don't have that specific figure for the technology changes.  The property I do, but technology, I could take that on notice and see what I can find in terms of the costs for that.

MS DOWSETT:  Just to clarify, I thought you said in an answer a moment ago there were 30 occasions where you couldn't provide the adjustment and then you say "We've provided everything we've been asked for".

MS MARSHALL:  No, so there was 30 specific adjustment requests and we approved all of those.



MS DOWSETT:  Thank you --- no, it's important to be clear.  Those 30 adjustment requests, you can provide us with a cost for those?

MS MARSHALL:  Some of them may not have a cost depending on the nature, but I can take that on notice to come back with information.

MS DOWSETT:  Thank you.

Turning to you, Ms Kruger, in your supplementary statement you've advised the average cost of adjustments provided through the Disability Accommodation Request Tool as $1,726.  I think that number might be wrong.  Do you recall the number?

MS KRUGER:  One thousand and fifty seven, fifty four.

MS DOWSETT:  That was for 14 adjustments?

MS KRUGER:  That was the average cost, yes.

MS DOWSETT:  Yes, but averaged over 14 adjustments?

MS KRUGER:  Yes, and there has been more adjustments since then so we've now had 28 adjustments.

MS DOWSETT:  Does the average cost still fall below $2,000?

MS KRUGER:  Generally speaking, yes.  So the average does, yes.

MS DOWSETT:  We spoke about other pathways to getting an adjustment through Accenture, and one of those was the Health, Safety and Wellbeing team.  Do you capture the cost of accommodations provided that way?

MS KRUGER:  Yes, and that average refers to the accommodations provided by them, so whether it comes to them via the DART tool or to that team through other sources, either HR business partners or requests or things like that, that's what that cost relates to and it is recorded in a case management tool.

MS DOWSETT:  In your supplementary statement, so this is on page 4 in the paragraph that has been renumbered through the corrigendum to refer to paragraph 15(c), you give the figure of $1,726.40 as the average cost of accommodation provided through the DART.  Is that not correct?  Is it the average cost of accommodation provided through any pathway?

MS KRUGER:  Yes.  Sorry, that is the up to date figure, I was looking at the one from May.  Through the pathways that come into the Health, Safety and Wellbeing team.  So whether that comes to them through the DART or another source.

MS DOWSETT:  Thank you for that.  Just to confirm, the other pathway was that informal arrangement and again they would be no cost or relatively low cost?

MS KRUGER:  Relatively low cost and, as others have indicated, things like flexible work arrangements and things like that are necessarily done the same way.

MS DOWSETT:  Where the cost is paid by Accenture, is it paid from a central fund or through the work area where the person is employed?

MS KRUGER:  It's paid internally through the Health and Safety team.  Costs are applied out to different parts of the business through a below the line allocation so it's not specifically to that employee.

MS DOWSETT:  And you go on in your statement to say that     moving on, sorry, to a topic about adjustments that are not provided.  So there has been a request but you've not been able to provide it.

Ms Kruger, you say for Accenture that an adjustment would not be provided if an assessment indicated it wasn't required or if it wasn't reasonably practicable to provide it?

MS KRUGER:  Yes, that's correct.

MS DOWSETT:  As to the first one, a person comes to Accenture and says, "I request this adjustment."  You undertake an assessment and it says "No adjustment required".  It's not provided?

MS KRUGER:  Yes.  It's probably worth noting that there have been no requests rejected, so we have provided adjustments and paid for those wherever they've been requested with the information that's recorded.

MS DOWSETT:  Just picking up on the second reason that you've given, "not reasonably practicable", that's the other reason you said an adjustment might not be provided?

MS KRUGER:  Yes, that's correct.

MS DOWSETT:  Do you appreciate that's not the test under the legislation?

MS KRUGER:  I would need to check into that.  Yes.

MS DOWSETT:  So perhaps if you can take that on notice and see if that is in fact Accenture's policy to not provide where it's not reasonably practicable and provide us with that in writing?


MS DOWSETT:  Turning to you, Ms Kesoglou, you say in paragraph 16 of your statement that NAB would not provide an adjustment where to do so would cause unjustifiable hardship, and that alternatives would be considered and discussed?

MS KESOGLOU:  That's correct.

MS DOWSETT:  Are you aware of any occasion when an adjustment is not provided and an alternative has not been able to be identified?

MS KESOGLOU:  No, I'm not.

MS DOWSETT:  Mr Cawood, if we could come to you next.  You've told us in paragraph 89 of your statement that where an adjustment is easily implemented, a decision will be made to approve the adjustment?

MR CAWOOD:  Correct.

MS DOWSETT:  Come being back to where we began this morning about not having a policy, how do restaurant managers know that whether or not something can be easily implemented is not the statutory test?

MR CAWOOD:  I have no policy about that.

MS DOWSETT:  You have no policy about how restaurant managers can know what the test is?

MR CAWOOD:  No.  Nothing to point you to apart from, as I said before, we have general policies and training that deal with a lot of these things.  Our restaurant managers and hiring managers, as well as their consultants in many cases, our franchisees, are well versed in accommodating people with disabilities and making many adjustments.  Most of them quite easily are accommodated.  Some require more substantial adjustments but in many cases they could be easily accommodated, and in fact they are.  They might be, you know, more support on the shift.  It might be a limit on where they work in the restaurant, whether it be the front of house in a customer service role, or other restrictions in terms of lifting or moving around the restaurant.

But those adjustments are, you know, very easily made, very easily accommodated and, as I say, are best made by the people who are operating the restaurants themselves.

MS DOWSETT:  The question, though, Mr Cawood, is not what McDonald's has managed to achieve because as you keep saying, you've got a number of employees who identify as a person with a disability and they identify on their application form that they need adjustments.  What I'm seeking to explore is what guidance McDonald's gives to these decision makers to help them make that decision.  Are we there by dumb luck or are you training them about what to do?

MR CAWOOD:  Well, I think it's more than dumb luck.  I think our experience has demonstrated what we are actually doing.  So in real life there are thousands of people working in our organisation that have disabilities, and we know thousands of them have made small or significant adjustments to their workplace experience and we know that through our annual engagement survey process that the vast majority,  
the overwhelming majority of cases say they are supported.  I can point to these things actually happening in real life and making a difference to the people --- and making a difference to our organisation.  It works both ways.

MS DOWSETT:  Thank you.  Now, you do say in your statement that you are not aware of any occasion on which an adjustment was requested and not provided?

MR CAWOOD:  I'm not aware, no.

MS DOWSETT:  You also, in your statement at paragraph 132, provided some information about themes of complaints that McDonald's has received?


MS DOWSETT:  One of those themes is around adjustments?


MS DOWSETT:  We see that on page 29 of the statement, Commissioner.


MS DOWSETT:  Does it follow from your answer you're not aware of an occasion when any adjustment hasn't been provided and each of these examples you've given at paragraph 132, the adjustment was provided?

MR CAWOOD:  No, I can't categorically say whether the adjustment was or wasn't provided in those examples.

MS DOWSETT:  What inquiries did you make for the purpose of giving the answer to say that you weren't aware of any instance when an adjustment wasn't provided?

MR CAWOOD:  I've spoken to a number of people and my team who assisted me in preparing for this affidavit and the hearing today, a number of people that have got experience in these areas.  These were some of the examples.  Again, I emphasise, most of these are going to be for employees that aren't directly employed by us, so I don't necessarily have those records, I need to speak to others who have got the employment relationship with 85 per cent of those employees working in a McDonald's restaurant are engaged on an employment basis with the local franchisee.  So I've made inquiries and my team have made inquiries to provide, as best we can, those examples.  We have a platform, an online platform called Care that records complaints received.  A number of these complaints would have been identified through examining that Care database.

MS DOWSETT:  Is the Care database anonymous?

MR CAWOOD:  No.  It would record     it would record who the complainant was,  
unless they've specifically chosen to remain anonymous.  You have an option to not disclose who is making the complaint or inquiry.  Many of the issues that are logged in the Care database are more inquiries rather than complaints.  Some are complaints but there is an option as to whether or not the provider of the information discloses who they are or not.

MS DOWSETT:  Just to be clear, the contents of the adjustment theme in paragraph 32, did that come from the Care database?

MR CAWOOD:  I can't say that all of it came from the Care database.  I would imagine we sought some of that information from the Care database.

MS DOWSETT:  Are you able to say whether the ones that were sourced from the Care database were anonymous or not?

MR CAWOOD:  I don't know.

MS DOWSETT:  Does it follow that you also don't know or didn't make any inquiries about what came of these complaints?

MR CAWOOD:  Yes.  I don't know that the resolution of those complaints is set out in the Care database, but I don't know what came of these issues.

MS DOWSETT:  Do you think that would have been a relevant inquiry to make in light of the statement you made at paragraph 96 that you weren't aware of any adjustments that had not been provided and weren't able to identify any examples?

MR CAWOOD:  We made our best endeavours to provide a fulsome answer to every inquiry that was made of us.  This represents our best efforts to do that.  You know, yes, of course, I possibly could have gone further, but these were our best attempts to provide a full answer for all of the questions.

MS DOWSETT:  Would your capacity to provide this information have been assisted by better recordkeeping?

MR CAWOOD:  Of course.

MS DOWSETT:  Do you think that's something that McDonald's would be prepared to take onboard to change, to in fact start keeping these records?

MR CAWOOD:  I think there's certainly an opportunity that I have personally experienced for preparing for today's hearing and preparing the affidavit, that there's an opportunity that should well be explored about how to record a lot of the information that you've referred to today, yes.

MS DOWSETT:  Now, Ms Marshall, you gave your answer to this topic on the way through but just to confirm, it's RMIT's position that it's not aware of any  
circumstance in which a person asked for a reasonable adjustment and it wasn't provided?

MS MARSHALL:  That's correct.

CHAIR:  Ms Marshall, I notice that you've been in your position for three months, and your position has the title Chief People Officer; is that correct?

MS MARSHALL:  That's correct, yes.

CHAIR:  Was there a predecessor or are you are the first person to hold that position?

MS MARSHALL:  There was a predecessor but I have actually been with RMIT for three years in another role before this, yes.

CHAIR:  Were you in this section that is the subject of your statement?

MS MARSHALL:  Yes.  I was the Director of HR Business Partnering so I was in the People team.  Yes.

CHAIR:  Yes.  Thank you.

MS DOWSETT:  Now, Ms Kesoglou, I want to come back to you and ask you about the topic that you raise in paragraphs 16 and 17 of your statement, that's the question of mental health.  You observed that it is perhaps an area of increasing referral and increasing numbers of employees seeking assistance in this regard.

MS KESOGLOU:  Yes.  That's correct.

MS DOWSETT:  What I would like to explore with you and then with the rest of the panel is what you do or what you're able to do at NAB to support employees with a mental health concern or perhaps a psychosocial concern in the workplace, specifically in terms of adjustments?

MS KESOGLOU:  So the way we have approached this is obviously through awareness and education.  As we've seen the shift in a lot more people coming to work, and whether it's a personal issue or it's a work related issue that's affecting their ability to perform their roles because of anxiety or stress, it sort of impacts     and we position it as the psychological safety or ability to speak up.  I guess what we've been doing is trying to educate our leaders and our colleagues around what is available by way of support for them, whether it's a third party through our Employer Assistance Program provider, that they can get specialised and private and confidential sort of counselling, or whether it's actually requesting support from their leader but they're actually struggling with something and need either an intervention or an adjustment to be made as part of the work that they're doing.  So it goes back to what was raised before around what type of an adjustment  
can be offered, and in most situations around the mental wellbeing of people, it's time out, it's flexible working, it's looking at the type of role they are in and looking to see what we can do to adjust I guess levels of responsibility that impact on their mental state.  And during those conversations it's always about empowering the leader to have those difficult conversations and to be aware of what we can do to support this colleague or this employee, remain employed but also give them the time they need to recuperate.

MS DOWSETT:  The assessments that we're talking about here, these are early intervention assessments   

MS KESOGLOU:  Correct.

MS DOWSETT:  --- is that the category in your statement?

MS KESOGLOU:  Correct.

MS DOWSETT:  You've recorded in the period 1 October 2019 to May 2021, there were 280 of these assessments?

MS KESOGLOU:  Correct.  So they've been sort of tracked or logged from an incident report.  So when something happens to somebody and there's a sort of requirement for a discussion or something to change, they're recorded through as an early intervention.

MS DOWSETT:  Do you keep track of the something that changes?  Have you got statistics about the adjustments or modifications that are being made?

MS KESOGLOU:  Yes, we would have because there are options in relation to whether in terms of is it an adjustment to their work, to their work pattern, to their role, or is it just time out?  So we would be sort of tracking what type of an assessment or adjustment is required, yes.

MS DOWSETT:  Thank you.

Turning to you, Ms Kruger.  Firstly, is the experience at NAB of seeing an increase in these issues something that is reflected in your organisation?


MS DOWSETT:  Are you able to tell the Royal Commission what it is that Accenture is able to do to provide accommodations or support in this area?

MS KRUGER:  So there's a number of things that we can do, one of which is flexible work arrangements.  Working, where relevant, with medical practitioners and external advisers to provide the right set up, whether that includes time away, part time arrangements, different working arrangements to put the right structures.  It  
may include moving people to a different part of the business or to a different role that helps them address the challenges that they were facing.

MS DOWSETT:  Next to you, Mr Cawood, is this issue something you've observed or something that McDonald's has observed, an increase in mental health issues?

MR CAWOOD:  I don't have any empirical data that points me in that direction.  But I, you know, very easily accept that anecdotally there seems to be.  It's not an infrequent issue that arises in our workplace.  Certainly, you know, mental health around anxiety is an issue that we see from time to time for sure.

MS DOWSETT:  And again it would be up to the restaurant managers to work out what adjustments could be made to accommodate somebody in those circumstances?

MR CAWOOD:  I think there's information that we provide to all employees about mental health, how to deal with it, how to manage it.  We certainly have an employee hotline that any employee or manager can call to get assistance in dealing with those issues for their own health or for someone under their direct supervision.  We also have an Employment Assistance Program which is a third party provider that we pay for that can provide counselling support to any of our employees.  They dial up the line and get that independent, you know, no record to us but, you know, get the support.  So there are programs that are available to employees and to managers around the country, yes.

MS DOWSETT:  Finally to you, Ms Marshall, is it something that RMIT has observed, an increase in employees needing support for mental health issues?

MS MARSHALL:  Yes, we have.

MS DOWSETT:  Are you able to tell the Royal Commission what you are able to do in your workplace to support and accommodate those people, or if there are circumstances where there's not something that you are able to do?

MS MARSHALL:  Yes.  I guess, similar to the other panelists, we have a free counselling service, confidential counselling service for employees and their families.  We also have a manager assist counselling support service where we have coaching for managers who have employees that may have a mental illness.  We also have regular training and awareness for our staff and managers in relation to mental wellbeing, and similar to NAB, we also have an Early Intervention team and a Health Safety and Wellbeing team who will support employees through any mental illness that they're suffering.

We look at then what adjustments are required based on medical advice, looking at flexible work, job design, et cetera.  And I'm not aware of any cases where we haven't accommodated requests.

MS DOWSETT:  Thank you very much.  I have no further questions for the panel.   
I'm going to hand you to the Commissioners now.

CHAIR:  Thank you very much.  I will ask Commissioner Galbally, who, if you don't already realise, is in Melbourne.  I will ask Commissioner Galbally whether she has any questions.


COMMISSIONER GALBALLY:  Thank you, Chair.  I'm interested to ask particularly RMIT and Ms Marshall and Mr Cawood about what sounds like a universal     in fact you used the word, Ms Marshall, a universal approach to adjustments to complement the individual.  I wonder if you can start in outlining what you mean by that, a universal approach to reasonable adjustments for people with disability.

MS MARSHALL:  Thank you.  So the approach that RMIT has taken over the last five years, and this has been heavily informed by the Australian Network on Disability, is really design for dignity, so universal design approach where we look at our systems, our technology, our ways of working, our physical environment, and proactively remove barriers or any areas where we see there may be accessibility issues and that's the approach we've taken.  We've been looking at things from a more enterprise level approach rather than looking for employees or individual request adjustments.

COMMISSIONER GALBALLY:  So you are trying to almost make the whole environment as accessible as possible, and that also means workplace flexibility and working from home policy, yes.

Mr Cawood, I mean, I'm going back a long way in terms of McDonald's decision quite a long time ago to employ people with disabilities and your long involvement in that.  So your approach to workplace adjustments sounds also that you're trying to make every     you know, the whole culture universally inclusive.  Is that the case?

MR CAWOOD:  Yes.  I don't think I specifically spoke about a universal approach or an individual approach.  We certainly have a individual approach at a restaurant dealing with particular employees, and what they say or their carers or supporters or the disability service provider, you know, we work with --- and it's not just work with at the start of their employment.  In many instances it's a journey.  Throughout their entire employment journey with us, which in many instances is many, many years, there's an ongoing process around is what we're doing sufficient, is it working for both parties and continuing to evolve that throughout the journey of their employment.

There are, of course, though --- again, while not referring to it before, there are of course system things that we have done, and I think Counsel Assisting has  
highlighted some opportunities that I think we have as well that, you know, can be done and probably should be done.  But in terms of, you know, recruitment which I think is a really important focus of the Commission today, we have moved from a previous provider of online recruitment services, which was an online process that took about 36 minutes to complete, it was heavily word based and you needed a certain level of comprehension and oral and written skills to complete it.  And the assessment was done largely on your ability to answer those questions in writing.

We have now moved to a new online platform from December 2020 which only takes 3 minutes to complete, which has been designed in a way that removes some of those or lowers some of those barriers to some people with accessibility.  That is, I guess, one example of a more universal or more system wide approach that's trying to address some of those important barriers that might exist at that important time of entering the workforce or entering our employment.


CHAIR:  Commissioner Ryan.

COMMISSIONER RYAN:  A question to everybody except the representative from NAB because you did actually mention this.  I was wondering, when you were responding to the Commission's request about the costs and covering the costs of employment adjustments, none of you referred to the Commonwealth Employee Assistance Funding program, which is a program designed to offset those costs.  Is it because that program is not well known or you don't use it or it's difficult to use?

MS MARSHALL:  If I can answer on behalf of RMIT.  We haven't accessed it because we haven't needed to at this time as a large employer.

MS DOWSETT:  Mr Cawood, if I can ask you to go next?

MR CAWOOD:  Yes, of course.  We have set out in my statement we don't currently access the fund.  I can't honestly provide a direct answer as to why we don't, whether we don't need to or the organisation as a whole including our franchisees aren't cognisant of it, but we don't, as far as I can ascertain, access the fund at the moment.

MS DOWSETT:  And Ms Kruger.

MS KRUGER:  No, we haven't accessed the fund at this point in time as we haven't found a need to.

COMMISSIONER RYAN:  Mr Cawood, I was just going to clarify something you had said earlier.

In your statement you make the statement that McDonald's does not maintain a centralised database recording the number of employment adjustments requested and provided to people with disabilities, and then in some of your evidence you indicated  
that you did have a record.  Could you clarify what you meant, given that there seems to be a difference between those two statements?

MR CAWOOD:  Yes, of course.  So there are two principal ways people enter our workforce, either working directly for McDonald's Australia Limited or working for one of the 230 odd franchisee companies that operate McDonald's restaurants.  The most     the biggest way in which they enter our workforce is entering through our current online recruitment platform which is called Smart Recruiters.  As part of that application process, we record, we ask them a question that --- you know, I will paraphrase, simply says, "Your job is likely to include lifting, twisting, bending, working at pace and talking to customers.  Do you have a disability that would prevent or limit or restrict you in doing some of those activities?  If so, what adjustment or support do you need to have in order to perform those tasks?"

We record, for everyone that is hired through that platform, the response to those questions and we retain that information.

So from 2020, December 2020, that information is recorded for every single person we hire through that online platform.  Previously there was another online platform called Work Start that effectively did the same thing and effectively asked the same question.

There is another avenue with people with more, let me say, that might require more substantial assistance that often come to us through a disability service provider.  I don't have a national database that records what adjustments are made for those individuals that don't enter through the online platform but enter through the support provided by or the services provided by that disability support service provider.

Those adjustments tend to be more substantial in nature, more ongoing in nature, but I don't have a national database of them and I think as the Chair previously identified, if adjustments are made post recruitment, I don't have a database that records at a national level those adjustments.  I hope that clarifies it.

COMMISSIONER RYAN:  The way in which you asked the question about adjustments and recruitment, and you indicated a number of things people might be required to do, do you think that there is a risk that might actually put people with disabilities off, that they might say, "If I had to do all of these things I can't work for McDonald's"?  Even though you do offer adjustment, if you didn't have high level of literacy in what adjustment meant, you might think that that was in fact an indication that you can't work at McDonald's?

MR CAWOOD:  Perhaps, and I'm happy to     the organisation is open to ongoing feedback around all of our recruitment processes particularly in this critical area.  Referring specifically to the question, it says "Some of the key responsibilities that you may be asked to perform include lifting, twisting, working at pace and talking to customers."  They are typically what an ordinary worker in our restaurants would be asked to do.  And then it goes on to say, "Do you have a disability or health condition  
which would prevent you performing some or all of these tasks?  If so, please explain the disability and what support may be required to assist you in performing the role."

I believe it's written in a way that is trying to be inclusive and trying to indicate our support for those people that may have limits or restrictions on some of their, you know, activities and movements.  I would also emphasise that what we do have is a lot of people that do get employed, that do in fact have a disability and do in fact respond positively to those questions, and then the feedback of those that are employed through our engagement process each year indicate that they are well supported by the system and by their managers.  So, you know, yes, of course we could reflect on some of those questions and perhaps ask them in a more inclusive kind of way, but I think it tries to address those issues.

COMMISSIONER RYAN:  The final thing, when you take on a new franchisee, what sort of briefing do you give them about their legal obligations?  For example, do you brief them on perhaps the local requirements for work, health and safety, and do you make any reference to the Disability Discrimination Act and its implications on employment?

MR CAWOOD:  Yes.  The training involved for many of our new franchisees is a lengthy process.  It typically takes, you know, over a year for someone to go through our training courses.  They are trained on all aspects of running a business.  They are a separate legal entity.  They are their own employee entity who have their own obligations.  We typically attract people that are well versed in running a business and know full well what those legal obligations are.

COMMISSIONER RYAN:  Mr Cawood, we are limited by time.  I really didn't need you to go into the detail, do you ---

CHAIR:  I think the answer to Commissioner Ryan's answer is no, judging by the response.

COMMISSIONER RYAN:  Do you brief them on their legal obligations?

MR CAWOOD:  We talk to them about a range of many things, including many legal obligations.

CHAIR:  I think the question was, do you talk to them, do you train them in the requirements of the Disability Discrimination Act?  I would have thought the answer to that is either yes or no.

MR CAWOOD:  I can't answer that question.

CHAIR:  Thank you.

Can I ask, please, Ms Kruger, I notice that at page 7 of your statement on behalf of Accenture, you indicate that there is a disability recruitment target of 8.7 per cent by  
2022.  As I recall your evidence, I think you indicated that you now had 81 people who self identified as people with disability out of a workforce of 6,335, which is roughly 1.4 per cent.  It seems like a rather big jump from 1.4 per cent to 8 per cent by 2022.  How is this going to be achieved?

MS KRUGER:  This is going to be a challenge for us because of the self identification.  That 81 relates to all of our employees and around self identification.  We are actually going through a process in relation to being a disability recruiter and looking at questions in that process that help identify individuals as they are coming in through the recruitment channels to identify as having a disability, and whether or not they need support or assistance is a part of that.

CHAIR:  I'm not sure I understand the answer.  Are you indicating that you think you've already got more than 1.4 per cent and you will be able to boost that percentage by getting some further information from employees or is there a particular program you intend to implement?  I'm not quite clear?

MS KRUGER:  We are looking at programs to implement to encourage more people to identify because it is voluntary self identification, that's the challenge that we face.  We do believe that there's more people within the workforce that have disabilities that have not identified.

CHAIR:  All right.  Thank you.

If I can ask Ms Kesoglou, you indicate at page 4, I think paragraph 5 of your statement, that NAB does not currently have targets for recruiting, promoting or retaining employees with disability, so you refer to a range of policies.  Is that because a target has been considered and rejected, or because NAB has not directed attention to whether there ought to be targets?

MS KESOGLOU:  Yes, the answer is the latter.  Our focus has really been on inclusion and accessibility and adjustments much more so than specifically highlighting people with disability.  So it's not because we have put that up and it's something that we've just not discussed that.

CHAIR:  Having regard to the practices of other large employers, do you think there might be some merit in at least considering whether that is a worthwhile initiative?

MS KRUGER:  Yes, and we will consider it, but we are quite keen to make sure that we can track and monitor this through our HR system first.  So as we transition to a new modern Workday system, we will build capability in doing that and so we'll be in a better position to then be able to set or consider targets and goals.

CHAIR:  Thank you.  Now, I understand that Mr Carr who appears for Ms Marshall wishes to ask some questions.  Perhaps you can indicate why you wish to ask some questions?

MR CARR:  Yes, thank you, Chair.  Subject to leave being granted in accordance with the Practice Guidelines, I would like to ask Ms Marshall five questions, they are all related and they concern the questioning that was made of her in relation to universal adjustments, and then specific adjustments made     requests for adjustments made by people in addition to those universal adjustments.  I just felt there was a point of clarification to be made.

CHAIR:  If you want to ask questions designed to clarify, you can do that.  I would ask you to be as brief as possible and for Ms Marshall to keep her answers as brief as possible, bearing in mind we have time constraints and many parties are represented.  So go ahead.


MR CARR:  Absolutely, Chair.  Thank you.

Ms Marshall, I direct your attention to the answers given by you to questions put to you by Counsel Assisting, as well as matters stated in your statement relating to the universal adjustments that RMIT makes for all staff.  Is it the case that people who require adjustments do not, in many cases, need to ask for adjustments because they've already been made for everyone at RMIT?

MS MARSHALL:  Correct.

MR CARR:  During the past two years, is it true that approximately 30 people required adjustments above and beyond those universal adjustments?

MS MARSHALL:  That's correct.

MR CARR:  Were those 30 requested adjustments provided by RMIT?

MS MARSHALL:  They were all provided.

MR CARR:  In the past two years, to your knowledge, has any request for an adjustment been declined by RMIT?

MS MARSHALL:  No, not to my knowledge.

MR CARR:  Is it true to say that in the past two years, all requests for adjustments made of RMIT were accepted by RMIT, and those adjustments were made?

MS MARSHALL:  That's correct.

MR CARR:  Thank you, Ms Marshall.  Thank you, Chair.

CHAIR:  Thank you, Mr Carr.  I love non leading questions to clarify.

I assume that nobody else who is represented has any questions to ask of members of the panel, in that case I thank everybody who has appeared, the five representatives today.  We thank you for the statements you've provided and the oral evidence that you've provided today, and if I may express the hope that at least some of the members of the panel who have said that they will consider some issues from the point of view of their organisations, that that will in fact happen.

Thank you very much.  Shall we now take a break?


MS DOWSETT:  If I may, Chair, do the tender?

CHAIR:  Have I got a list?  I'm about to be given a list, I think.

Yes, go ahead, Ms Dowsett.

MS DOWSETT:  Firstly, Chair, I would like to pick up with the attachments to the statement for Michael Nelson.  Mr Nelson's statement was tendered yesterday as Exhibit 19 15.  The attachments as indicated on the schedule you've been passed will become 19 15.1 through to 19 15.14.

CHAIR:  Yes.

MS DOWSETT:  The statement of Mr Cawood dated 21 June 2021 will be 19 16, together with annexures at 19 16.1 to 19 16.5.

CHAIR:  Yes.

MS DOWSETT:  The statement of Ms Kesoglou dated 11 June 2021 will be 19 17 with attachments 19 17.1 through to 19 17.11.

The statement of Ms Kruger dated 18 June 2021 will be exhibit 19 18 together with attachments 19 18.1 through to 19 18.6.

The statement of Ms Marshall dated 11 June 2021 will be we propose exhibit 19 19 with attachments 19 19.1 through to 19 19.8.

CHAIR:  Thank you.  All of the documents to which Ms Dowsett has referred will be admitted into evidence and given the exhibit numbers she has given.

All the documents are here and I will initial and date them.  Shall we resume at  










MS DOWSETT:  If it please the Chair.

ADJOURNED    [11.32 AM]

RESUMED    [11.50 AM]


CHAIR:  Yes.  Thank you, Ms Dowsett.

MS DOWSETT:  Thank you, Chair.  In the next panel we're going to continue our focus on workplace adjustments but this time we're going to look at it from the perspective of the Australian Public Service through three witnesses representing the Australian Tax Office, the Department of Social Security and the National Disability Insurance Agency.

CHAIR:  I think we have everybody onscreen.

Thank you very much for attending the Royal Commission to give evidence.  We appreciate your assistance.  Just so you know where we are all gathered, Commissioner Galbally is joining the hearing from Melbourne.  I'm in the Sydney hearing room together with Commissioner Ryan on my right and Ms Dowsett, Counsel Assisting the Royal Commission is also in the Sydney hearing room.

I will now ask Ms Dowsett to ask you some questions.





MS DOWSETT:  Thank you, Chair.  In her opening on Monday morning, Ms Eastman noted that the percentage of people with disability recorded in the HR system across the Australian Public Service as a whole is 4 per cent.  The representative --- the agencies and the Departments represented here do slightly better than that, and I will give you their statistics as I introduce each witness.

Firstly, if I could begin with you, Mr Chapman.  You are Bradley Chapman, Deputy Commissioner, ATO, People?

MR CHAPMAN:  That's correct.

MS DOWSETT:  You have provided a statement to this Royal Commission dated 27 October 2021?

MR CHAPMAN:  Yes.  That is correct.

MS DOWSETT:  In that statement you have adopted the statement prepared by a Mr Liam Page, Assistant Commissioner, Workforce Strategy, dated 18 June 2021?

MR CHAPMAN:  Yes, correct.

MS DOWSETT:  Do you also adopt his corrigendum of 17 November 2021?

MR CHAPMAN:  Yes.  That's correct.  I actually signed that corrigendum myself.

MS DOWSETT:  Commissioners, for your information those statements are in Bundle C at Tabs 7, 8 and 8A.

Taken together, Mr Chapman, are the contents of those statements true and correct?

MR CHAPMAN:  Yes, they are.

MS DOWSETT:  We see from your statement that the most recent figures recorded in the HR system for the Australian Tax Office have the participation of people with disability at 4.6 per cent.  That's correct?

MR CHAPMAN:  That is correct.

MS DOWSETT:  In the most recent APS census, the Australian Taxation Office recorded 1,126 employees with a permanent disability or 8.9 per cent; is that correct?

MR CHAPMAN:  Yes, that is correct.

MS DOWSETT:  Thank you.

Turning to you, Mr Hudson.  You are Adrian Hudson, Chief Operating Officer and Deputy Secretary of the Department of Social Security?

MR HUDSON:  The Department of Social Services.  Yes, that's correct.

MS DOWSETT:  Thank you, and my apologies.  You have prepared a statement dated 18 June 2021?

MR HUDSON:  Yes, that's correct.

MS DOWSETT:  And a corrigendum dated 20 October 2021?

MR HUDSON:  Yes, that's correct.

MS DOWSETT:  Taken together, the contents of those statements are true and correct?

MR HUDSON:  Yes, they are.

MS DOWSETT:  As to participation rate, the HR system records DSS as having 7.2 per cent of its staff identify as a person with disability?

MR HUDSON:  That was correct at the time of the statement.  We now have updated data, if that would be useful?

MS DOWSETT:  Yes.  What can you tell the Royal Commission?

MR HUDSON:  So the current rate is at 6.6 per cent as at 30 September.

MS DOWSETT:  6.6 per cent?

MR HUDSON:  Correct.

MS DOWSETT:  In the 2021 census it was 254 employees or 12.1 per cent?

MR HUDSON:  That's correct.

MS DOWSETT:  And then turning to you, Mr Aikman, you are Hamish Aikman, Chief People Officer, National Disability Insurance Agency?

MR AIKMAN:  Yes, that's correct.

MS DOWSETT:  You provided a statement to the Royal Commission dated 23 June 2021?


MS DOWSETT:  That statement is true and correct?

MR AIKMAN:  It is.

MS DOWSETT:  As to participation level, as at 30 March 2021, your HR system recorded 11.44 per cent employees identifying as a person with a disability at the APS level?


MS DOWSETT:  And 8.5 per cent at the Senior Executive Service level.


MS DOWSETT:  In the 2021 survey, a record of 684 employees or 17.2 per cent of employees identified as a person with disability?

MR AIKMAN:  There is a slight correction to that, Counsel.

MS DOWSETT:  Yes, please.

MR AIKMAN:  In the corrigendum which we submitted, the 2021 census data for APS employees with disability is 19.1 per cent.

MS DOWSETT:  19.1 per cent.  Thank you.

So a question for each of you but I will begin with you, Mr Aikman: the number or the representation participation rate of people with disability in your agency is higher than the APS wide average.  Why do you think this is and focusing specifically on today's topic, reasonable adjustments, do you think your policy has anything to do with your numbers?

MR AIKMAN:  Thank you, Counsel.  Look, there are probably two things I would point to.  I think the agency when it was formed, it's an agency of eight years now, it really started with a vision around how does it ensure that it is able to be accessible to all people and particularly for people with disability in Australia.  And work was commissioned in the early days which actually has formed part of the structural set up of the agency to ensure we do have policies and practices in place that enables us to be accessible to people with disability.

I think also too I would also note that the agency and the employees and labour hire workers who work within it have a very deep passion for the agency.  They are drawn to the mission of the agency and we see this also in our census data as well.  And I think there's a combination of factors that enables us to achieve this level of participation within our agency.

In terms of the question specifically around workplace supports, yes, we have a very clear policy on ensuring that workplace supports are provided to all people who work within the agency and for those people who specifically request it.  We have a very strong focus on ensuring that conversations around adjustments occur at the local level wherever possible.  And we also have ensured that wherever possible we talk about universal design in the way we set up the agency, which again enables these things, not necessarily to be asked but are provided in the way in which we set up the agency specifically.

MS DOWSETT:  Thank you.

Turning to you, Mr Chapman, if you could answer the question?

MR CHAPMAN:  Yes.  I think it's safe to say we have put a significant focus on diversity and inclusion across all forms of diversity, diversity groups over a number of years now which has seen an increasing trend or an increasing focus, I should say, for us as an organisation.  Most recently we have seen an increase in disability representation within our workforce.  That is partly a result of that increased focus  
but also, because as part of that we've put a concerted effort into communicating the importance of people disclosing diversity status to assist us in planning and providing support so that we can channel information directly to our people that may be of assistance to them.

So I think that is certainly assisting people to feel more both aware of the importance and of how to disclose that status if they are comfortable doing so, but also then enables us to ensure that people are aware of the different supports that we can provide for them.

I think the other thing I would flag is we have very much tried to take not a process driven approach to reasonable adjustment, but looking at individuals and their circumstances quite specifically.  So we do have a specialist area that we've set up within the corporate HR area.

MS DOWSETT:  Thank you, we will come to the detail of what you do in a moment, I really just wanted to know whether your policy and process sets around workplace adjustment is one of the reason for your representation levels.

MR CHAPMAN:  Yes, I do.

MS DOWSETT:  Turning to you, Mr Hudson, are you able to answer that question from your agency's perspective?

MR HUDSON:  Yes, there are two things, the first thing is, we are the Department who has responsibility for disability in Australia, so in similar way to Mr Aikman, some people are drawn to the Department based on the nature of the work we do.  Secondly, across the board when it comes to diversity inclusion, we place a lot of emphasis on diversity in the workforce, including disability, so I think that also helps.

Going to the specific question of the reasonable adjustment policy, yes, I think as part of a number of different things we do, that is a very important element which has collectively helped us to achieve those sorts of results.

MS DOWSETT:  Thank you.

If I could ask you first, Mr Hudson, I will stick with you, what is it that you --- are you able to tell the Royal Commission what it is that the Department is seeking to achieve through its adjustments policy?  Are you seeking to meet a minimum standard?  Are you seeking to facilitate broader participation in the workplace, or some other theme?

MR HUDSON:  Yes, so essentially what we are looking to achieve is making sure that everybody who would like to work for us or does work for us has the opportunity to perform at their best.  So slightly different to the two examples you provided, but probably more closely aligned to the second example you provided.  It  
is important people in Australia with a disability have the opportunity to participate in the workforce.  So that is something that is important to us and something that underpins our approach towards reasonable adjustment.

MS DOWSETT:  You've provided to the Royal Commission a copy of your Department's policy on reasonable adjustments, and you've indicated in your statement that adjustments are made, as you have said, to minimise the impact of the employee's disability and enable them to perform the inherent requirements of their job.

What I would like to know from you next is, what are the inherent requirements of a job, when are they identified, by whom, and when are they communicated to home employees?

MR HUDSON:  So generally speaking, the inherent requirements of the job are published in what we call a position description or a duty statement.  So that's generally the material that we advertise when we advertise a job to start with.  So what that position description or duty statement says is these are the sorts of tasks or activities that the position entails.  These are the sorts of skills and relevant qualification somebody would need to have to fulfil those job requirements.

MS DOWSETT:  So is it fair to say that you see tasks and activities and skills as inherent requirements?  They are one and the same?

MR HUDSON:  Yes, that's correct.

MS DOWSETT:  If I could turn to you now please, Mr Aikman, and ask you the same question.  What is it that the NDIA is seeking to achieve through its policy on adjustments?

MR AIKMAN:  Thank you, Counsel.  So our ambition is to ensure that we have a workforce composition that is truly reflective of the society which we operate in.  And, of course, that means specifically we want to ensure that we are able to attract and retain people with disability.  So that's central to our approach.

In terms of, you know, the impact of that, the workplace adjustment and making workplace adjustment is part of ensuring that we aim to create a great work environment for everyone, and that everyone is able to fulfil and, you know, really bring their best selves to work.  And we do measure this as part of our census as well.  So I think those are the two elements.

Probably the third I would say is in terms of attraction of people, people to the agency, again I think for us we want to make sure that we can cast the net as wide as possible for talented people who can provide support to the agency and make a contribution.  So I think there is a further angle that I would sort of build on what Mr Hudson has talked about.

MS DOWSETT:  In your policy --- which, Commissioners, you will find in Bundle C at tab 13H     do you have a copy of that policy there, Mr Aikman?

MR AIKMAN:  Yes.  The workplace adjustment policy?



MS DOWSETT:  We see in paragraph 3 a broad framework for the provision of adjustments.  As you've just explained, it's about broader participation in the workplace?


MS DOWSETT:  Then that's reflected also in paragraph 6?

MR AIKMAN:  Yes, it is.

MS DOWSETT:  And then paragraph 11 says:

Workplace adjustments should assist in removing barriers that may be faced by an employee to meet the inherent requirements of a role.


MS DOWSETT:  My question for you is, do workplace adjustments have that inherent focus, or are they related to removing barriers related to inherent requirements?

MR AIKMAN:  Counsel, I think really it's about removing barriers to the widest extent, and so to enable full participation for work in the agency.  So at paragraph 11, yes, it does reflect the statement around removing barriers faced to meet inherent requirements of a role, that's true.  And we take a wider approach in terms of full participation in the workforce.

MS DOWSETT:  So perhaps paragraph 11 could be reviewed and modified to reflect what is in paragraphs 3 and 6?

MR AIKMAN:  Yes, Counsel.

MS DOWSETT:  Thank you.  Just while you have that document in front of you, I would like to also direct your attention to paragraph 20, and this is where the agency describes what an inherent requirement is.


MS DOWSETT:  And you say or the policy says:

Inherent requirements relates to results, or what must be accomplished rather than the means, or how it is accomplished.

MR AIKMAN:  That's correct.

MS DOWSETT:  So is it accurate to say from your agency's perspective, it's not about skills and tasks and duties, it's about outcomes?

MR AIKMAN:  So if I build on Mr Hudson's comment, it is what he had described.  It certainly is about, you know, the outcomes we seek to achieve and the other element that I would add, you know, in terms of providing full disclosure for any person looking to join the agency is we describe the requirements in terms of the elements you just mentioned, but we also provide in our position descriptions the contextual environmental factors as well.  That really helps anyone considering work with the agency, considering all those factors, in terms of making a self assessment, about whether that role is the right role for them.

MS DOWSETT:  So is there something in a position description that would enable a reader to know whether something is an inherent requirement, an essential thing that must be done a particular way, or whether something is part of the job but it is subject to modification, it can be a focus on the achievement rather than the process?

MR AIKMAN:  Yes.  So the position descriptions really focus more around, not the process, but the outcomes is probably the best way I would describe it as listed there in clause 20.

MS DOWSETT:  That is clear from a position description?  If we don't have one to call up, but if we called up one now, we would be able to see that from a position description?

MR AIKMAN:  I would expect you would, yes.

MS DOWSETT:  Turning to you, Mr Chapman.  The documents that have been provided to the Royal Commission include the ATO's recruitment and onboarding process map and a guide that explains what it means and, Commissioners, for your information these documents are at Bundle C.  Tabs 7A, B and C are the ones we are going to be talking about now.

Mr Chapman, do you have those documents in front of you?

MR CHAPMAN:  Yes, I do.

MS DOWSETT:  To begin with, the recruitment and onboarding process, this is about taking a candidate through a selection process to day one?

MR CHAPMAN:  That's correct.

MS DOWSETT:  Is there a separate policy after day one for the requesting of adjustments in the workplace?

MR CHAPMAN:  We do have content on our intranet which, whilst it's not in the form of a Chief Executive instruction, it is the guidance material that we make available to our staff about reasonable adjustment processes.  So that takes the place of policy.

MS DOWSETT:  That takes the place of policy, did you say?

MR CHAPMAN:  Yes.  It is effectively the approach we take as an organisation to reasonable adjustment.

MS DOWSETT:  That's not included in the material that has been provided to the Royal Commission?

MR CHAPMAN:  No, I don't believe it is.

MS DOWSETT:  Does it apply the same processes, the same underlying structure as the documents you've provided?

MR CHAPMAN:  Yes, it does.  So, effectively, if there is something that     I mean certainly once somebody is in the organisation, if they are able to liaise with their manager about any changes or adjustment that they may require, they can do so.  But certainly anything that's more complex, just as per the recruitment map, is escalated to one of my health team members who will work with the individual and the managers to ensure an appropriate reasonable adjustment can be enacted.

MS DOWSETT:  If we could just look at the process map that you have provided to us.  So this is, as I said Commissioners, the document at Bundle C Tab 7.

Questions 18 and 19, to which I direct your attention, Mr Chapman, question 18 requires a candidate to declare if they have a medical condition, they are required to answer yes or no.

MR CHAPMAN:  Yes, that's correct.

MS DOWSETT:  This is a mandatory question?

MR CHAPMAN:  They can choose not to disclose.  So there is opportunity for people to select "yes" but they don't have to.

MS DOWSETT:  Then the next question asks if a person requires a reasonable adjustment.

MR CHAPMAN:  That's correct.

MS DOWSETT:  This question is, you can choose not to disclose?

MR CHAPMAN:  That's correct.

MS DOWSETT:  The second document --- Tab 7B, Commissioners --- this document, as I understand it, Mr Chapman, is the workplace adjustments question that is required to be completed by candidates; is that correct?

MR CHAPMAN:  Yes, that is correct.

MS DOWSETT:  You will see, right at the bottom of the page, the question about workplace adjustments is described as mandatory.

MR CHAPMAN:  My pages ---

MS DOWSETT:  It's on the screen, if that helps you.

MR CHAPMAN:  Okay.  Yes.  Sorry, it is a mandatory question, so when I say choose not to disclose, I was actually thinking of the "Unsure" button but different label.

MS DOWSETT:  Why is it mandatory for a candidate to answer this question?

MR CHAPMAN:  I think the thinking for having that there was so that we would know whether or not we needed to follow up if somebody had missed it, we would be unsure whether or not we should follow up with that individual as to whether or not they required further adjustment.

MS DOWSETT:  Within the ATO, the provision of adjustments is linked to the performance of inherent requirements of the role; is that correct?

MR CHAPMAN:  Yes, that is correct.

MS DOWSETT:  And that's the case whether you are seeking an adjustment through the recruitment process map you've provided to us, or the in employment process that you've been telling us about?

MR CHAPMAN:  I think that we actually capture the information at two different points because we appreciate that somebody may have a need for reasonable adjustment at the recruitment phase that may not actually be relevant for their subsequent execution of the role or vice versa.  So we do provide multiple opportunities for people to raise the need for reasonable adjustment.

MS DOWSETT:  I'm talking specifically about in the recruitment phase, a candidate might identify a need for adjustment in employment, or once they're in employment  
the person might identify a need for adjustment?

MR CHAPMAN:  That's correct.

MS DOWSETT:  In both those scenarios, the ATO links the provision of that adjustment to inherent requirements?

MR CHAPMAN:  I don't know that at interview stage we would limit it solely to that; if somebody needed adjustment just to enable them to be interviewed, then we will provide that as well, whether that is specifically linked to their ongoing execution of the role or not.

MS DOWSETT:  I'm asking you to leave aside participation in the recruitment process.  I'm talking about what the person is going to do if they win the job.

MR CHAPMAN:  Yes.  That is linked to the inherent requirements of the role.

MS DOWSETT:  And what are inherent requirements?  Who identifies them and when are they communicated to employees or candidates?

MR CHAPMAN:  So much like Mr Hudson explained, we do job design.  That is done centrally in a workforce strategy     the workforce strategy team corporately with the relevant business area where the role is located so that we ensure appropriate standards of documentation are completed.  That is then fed into any candidate kit at the point in time that we advertise the role so that individuals who may be interested in that role see what it is we are expecting.  Looking forward, that does take the form of the skills, knowledge and capabilities and the outcomes that we are expecting in a role.  That is outlined in the candidate kit that we place on our eRecruitment system that people access when seeking to apply for a role with us.

MS DOWSETT:  If I could take you to the onboarding process map guide --- so this was the document at 7A, Commissioners.

On page 6 of this document, we are in a section that's called “Process Observations” which, the heading appears on page 5, and then over at page 6 you will see it's come up on the screen now "location".  So "10” and “27" refer to steps on your process map.  Are you familiar with this document?

MR CHAPMAN:  I have seen that document.

MS DOWSETT:  So do you know what steps locations 10 and 27 are?

MR CHAPMAN:  Just going back to the process map to see what steps 10 and 27 were.

MS DOWSETT:  10 provides that the delegate to determine reasonable adjustment considerations for the interview selection process.  Delegate, in that sense, is the  
person who is making the employment decision; is that correct?

MR CHAPMAN:  That's correct.

MS DOWSETT:  And 27 is:

Delegate required to decide if the candidate with reasonable adjustments provided is able to perform the inherent requirement of the role.

MR CHAPMAN:  That's correct.

MS DOWSETT:  So we see in the column headed "Observation", the observation is:

There is a variety of delegates’ recruitment knowledge and experience.  The delegate may not know the inherent requirements of the role.  Delegates have been known to change their decision mid process.  This may lead to inconsistent decisions/outcomes for candidates and the organisation.

So my question about this is if the delegate doing the recruitment doesn't know what the inherent requirements are or might change their mind during the process, how can the candidate?

MR CHAPMAN:  The particular document you are looking at, I think, is one that was done as a review to look at how we can improve the process, because we agree there are flaws there, and that would make it challenging for the individual applicant as well as creating challenges for us as an employer.  So that is one of the reasons why we have a     refined our processes further to have delegates need to liaise with our health case specialists and also with the workplace manager.  Because in particular where we operate large bulk scale recruitment where we do for some of our nationally distributing business areas, the role type may have hundreds of positions that we may be seeking to fill, reporting to different managers, but we have a selection process delegate.  So we do need to bridge the gap, if you like, between the delegates for the recruitment process --- who is familiar with the work, but may need further information about the very specific position that the individual is being looked at for.  And so our case managers will work with both to ensure we can provide advice and ensure that the right decisions are being made.  But that is an ongoing challenge.

MS DOWSETT:  Is it the case that that challenge also permeates into the in employment requests?  So you are already employed by the ATO, you request an adjustment, that adjustment is going to be assessed against the inherent requirements of the role.  This challenge of making sure the decision maker knows what the inherent requirements are, that exists at that point in time also?

MR CHAPMAN:  It is a challenge.  However, what I would flag is we also have the benefit of being separate from the recruitment process where you have an individual who is actually in a role then needing further reasonable adjustment or seeking  
further reasonable adjustment.  They are dealing solely with the manager that is the manager of the particular role who can liaise with that individual with our health case team.

What that does enable us to do is also take into account, I guess, the practical day to day implications of the role.  So it's about the inherent requirements of the job but also any local considerations that may come to the fore that would assist, or need to be overcome as well.

MS DOWSETT:  Is there a risk that dealing with it at that local level --- you've spoken of the benefits, but is there also a risk that the outcome of your risk is then dependent upon your manager's knowledge of obligations or indeed your relationship with the manager and whether they're prepared to accommodate you in a way they may not accommodate someone they don't get on with quite as well?

MR CHAPMAN:  Yes.  I think that is always a risk in any organisation.  We have a number in of strategies in place to try and combat that.

MS DOWSETT:  Would you like to tell the Royal Commission what they are?

MR CHAPMAN:  Yes, happy to.  So we are continuing our focus on increasing education and awareness of all of our managers, but we also have a range of mechanisms available for any staff to raise concerns if they are unhappy with the response that they're getting.  But certainly that includes escalating that to our health case managers who are experts or trained     have undertaken significant training in order to ensure that they are able to provide advice back to both the individual and to the manager.  And if the delegate or the manager disagrees with our recommendation then those cases would be escalated so that we can ensure that we are meeting the obligations and our strategic intent that we've put out.

I think they are probably the key strategies that we have in place to ensure that people are both building capability but have avenues to raise exceptional cases.

MS DOWSETT:  That training that you are referring to, does it specifically address the Disability Discrimination Act?

MR CHAPMAN:  Yes, I believe it does.

MS DOWSETT:  Thank you.

Mr Hudson, I'm going to turn to you and ask you the same theme of questions.  When a person is in employment, who makes the decision about the provision of adjustments?

MR HUDSON:  So in most cases the decision is made by the local manager.  So the model we operate is a centralised policy and expectation setting, so the framework is designed centrally.  And then local decisions are made between individual employees  
and their manager, the two of who are in the best position to understand what might be required on the ground.

MS DOWSETT:  And, as I asked Mr Chapman, how does your department guard against the outcome being dependent upon an employee's relationship with their manager?

MR HUDSON:  There are several things.  As I mentioned, we have the centralised setting policy and expectation setting requirements.  We have a formal, what's called review of action or complaints policy, as I reference in my statement, that people can work through.  We also have, though, as part of our broader governance and cultural piece, a range of things in place.  For example, one of my colleagues is our disability champion so they are regularly talking within the organisation from a senior leadership perspective about the topics of disability and disability employment.  We have a disability and carer staff network supported by a senior manager, who also are looking at issues, escalating concerns, making observations and recommendations about things we could do or do differently.  We also have a dedicated diversity and inclusion team within the HR area which is in my part of the organisation, as well as a dedicated     sorry, that team includes people with disability as well as other diversity backgrounds.  And we also have a dedicated disability inclusion officer who can work directly with people with disability, including to record their details in what's known as a workplace passport.

MS DOWSETT:  We will come to the passport later.

MR HUDSON:  So that gives you a bit of a sense of the sorts of things we do to try and guard against the possibility that in a decentralised model the decision may not always be appropriate or consistent.

MS DOWSETT:  Finally to you, Mr Aikman, how are decisions taken in your agency and how do you guard against the potential that the outcome depends upon your relationship with your manager?

MR AIKMAN:  Thank you.  I think there are many similarities to what Mr Hudson just spoke to.  But certainly from an agency standpoint, we have an expectation that any requests for adjustment are able to be facilitated in the same way as Mr Hudson described, we do have a decentralised approach in terms of really encouraging both line managers and employees to work together to resolve any requests that are made.  And in the most instance, and for the most part, they are.

Of course, if in fact there's a disagreement, there are escalation or complaints handling processes.  There are a number of policies that the agency has that references those procedures and who to raise those concerns with.  And, of course, there is the general obligation of the Public Service Act of a review right of any decision that is taken that may impact employment.

I think to your point, Counsel, I think there is an ever present risk that, you know,  
with personal relationships or the like, that may impact the decision making process and hence it's important for us around our education, our training, our clarity around setting obligations and being clear about our obligations to consider any request for a workplace adjustment.  And there are a number of mechanisms and groups within our agency through which those complaints can be made.

I do have, within my function, a central area workplace integrity team that reviews these review actions.  We have business partners within the agency, we have peer support officers.  We have a range of mechanisms where these issues can be raised.

MS DOWSETT:  Now, correct me if I'm wrong, but do you say you have a decentralised decision making process, Mr Aikman?

MR AIKMAN:  We do.  In terms of the decentralised process, Counsel, just to clarify, for the most part that is where decisions are made.  Of course, if those issues cannot be resolved and are escalated, we do have a centralised workplace supports team, and that team will undertake a review and assessment of the request that is being made.  So    

MS DOWSETT:  So your policy, if I can just interrupt you, the policy at paragraph 13 says:

All workplace adjustments are approved and funded by the workplace support team.

MR AIKMAN:  Yes.  I can see ---

MS DOWSETT:  Is that not the case?

MR AIKMAN:  I think the clarification we would say there, Counsel, in terms of formalised workplace adjustments where there is a need, for example, to seek further information, undertake a workplace assessment, and then determine what potential workplace supports are required, yes, the workplace supports team manages that.  But what I would add, and you may have seen that this is a relatively dated policy.  This is one that is currently under review and is about to be put before our agency consultative committee, our network.  And there will be updates to this policy and I've taken note of that clause there, Counsel.  Thank you.

MS DOWSETT:  So just on the review, since you've brought it up, the final page of your policy does have a table where it says:

Review date 26.11.2017.

Is that the date that it was last reviewed or the day it was reviewed and you are just getting to it now?

MR AIKMAN:  It was the date the review was due, to be clear on that point.  It was  
the date of review that was expected.  It has taken time to review it and it has been reviewed.  I think in terms of the policy posture, I guess I would note here that there are no fundamental changes to the policy but yes, counsel, it is currently being reviewed and will be before our agency consultative network for approval.

MS DOWSETT:  There essentially under the process you've described, what we might call the practice rather than the policy, there is a two pronged approach there: things that can be done at the work level and things that can be escalated?

MR AIKMAN:  Yes.  That's correct.

MS DOWSETT:  Is it the case that irrespective of whether it's at the work level or escalated to the workplace support team, the central funding is still correct, that it is funded by one part of your agency?

MR AIKMAN:  That's correct.

MS DOWSETT:  As I understand it, the move to that central funding was a goal from the 2018 to 2020 Disability Strategy and Action Plan, is that correct?

MR AIKMAN:  That's correct.

MS DOWSETT:  Can you tell the Royal Commission why you had that goal?

MR AIKMAN:  Yes, I can.  The reason being that when it comes to formalised supports where there may be a need for funding to support it, we wanted to ensure that there was objectivity in terms of making sure that those provisions were provided.  So this is one of the elements you spoke to, Counsel, earlier about guarding against local decisions where the provision of, you know, funded supports is needed, that that in some way is not discounted, and so we increase the objectivity of that process by centralising the assessment and the provision of supports.

MS DOWSETT:  Is it the case that that central funding separates the cost of the adjustment --- if there is a cost --- from the performance of the employee?  So nobody takes the view that this adjustment is an employment cost of any particular person?

MR AIKMAN:  That's correct.  It removes that distinction.

MS DOWSETT:  Thank you.

Mr Hudson, in your statement you say at paragraph 47 that there is centralised funding but then at paragraph 52 you indicate the work area pays.  So can I ask you to tell the Royal Commission which it is?

MR HUDSON:  It's both, Counsel.  So for many of the workplace adjustments, they are dealt with and funded locally, but there may be circumstances where a work area  
is of the view that they don't have sufficient funding for a particular adjustment, and then they can seek support from the central HR area.  So it is actually both.

MS DOWSETT:  What kinds of things would not be paid for at the local area?

MR HUDSON:  I can't think of any specific examples of what wouldn't be paid at the local level.  And in fact we haven't had to use that central funding very often.  I don't have the figures with me.  But the amount of money spent from that particular allocation is fairly small because most things are actually dealt with centrally.  But there could be an example, of which I can't sort of name, where there is a need for some additional assistance and that can then be discussed between the work area and HR team.

MS DOWSETT:  You've indicated in your statement that the Department doesn't capture the number of adjustments requested and provided.  Firstly, is there a reason why you don't capture that?

MR HUDSON:  Well, firstly, because we operate in a decentralised model, there is no kind of central recording system and many adjustments are, by their very nature, wouldn't necessitate capturing necessarily.  So, for example, if a person there is the document holder, as part of their reasonable adjustment, there doesn't appear to be any apparent benefit of capturing an individual person who required a document holder.  Something like a document holder, that would be ordered by the local branch in the monthly equipment and stationery ordering.  So our rationale is thinking about the utility of capturing those sorts of things.

Having said that, it is obvious, having answered these questions, that we actually don't have this ability across the board.  I have been able to collect some manual data since the statement which you might like to hear about, but one of the things I have identified is that because we don't collect data centrally, I don't necessarily have the line of sight that would tell me whether or not the policy is working effectively.  So in the context of reviewing our current diversity inclusion strategy, and the new version will be launched early next year, it's one of the things I will ask the team to have a think about and look at how do we operate a central policy framework with central expectation settings, and a decentralised decision making framework, but how we then have some line of sight or visibility and whether that is effective.  I think that's a gap at the moment.

MS DOWSETT:  One of the things this Royal Commission has heard about is the perception that it's expensive to employ people with disability, that they require costly adjustments.  If you don't capture the cost of adjustments that are provided, how are you ever going to combat that perception?

MR HUDSON:  Well, to be fair, you can't without an evidence base.  So without an evidence base you can't combat perceptions.  Two things I would say, one, as I mentioned, we are looking at what kind of data we could and should be capturing to help us.  Secondly, while I appreciate that's the perception that you have been  
hearing, I don't have a sense within our organisation that financial restraints are a consideration when we are applying reasonable adjustments.  Of course, I will qualify that by saying I don't have the data to back that up.

MS DOWSETT:  Thank you.

Turning to you, Mr Chapman, as I understand it, within the ATO, the costs of adjustments are covered by what's called ATOP, or ATO People, ATO IT or Job Access or the Employment Assistance Fund.  Is that correct?

MR CHAPMAN:  That is correct for any assistance that is generated out of the health case or a formal request that is escalated to my area.  But much like my colleague at DSS, we also will have any number of adjustments that are made at the local workplace level, particularly where they are not requiring corporate support for integration into software systems or building modifications or more significant things.  So again if you look at things like footstools, document holders, shifts in time, working hours to accommodate treatments and things like that, they would not be costed and captured into our corporate systems, unlike the things that are generated because they are more significant or they are more complex or they are a result of a health case that identifies a need for reasonable adjustment.

MS DOWSETT:  Would it be fair to say that you capture the expensive things but you don't capture the low or no cost things?

MR CHAPMAN:  Yes.  I think that's a fair assessment.

MS DOWSETT:  Might that skew a perception to say that adjustments are expensive?

MR CHAPMAN:  Look, it could.  There is a risk of that.  I would say our business areas don't see the cost of those costs.  We don't talk about cost widely.  And I think that helps to mitigate that, so given a lot of the     any of those more significant costs are borne corporately and not by the individual business areas, our business areas and local managers don't really have cause to see that disability adjustments are an expensive impact on their local budget.

MS DOWSETT:  So if we look in your statement at paragraph 80, you've provided     sorry, I've missed a page, your statement at paragraph 80, a table setting out the cost of support and equipment, interpreter services and DHS accessibility support, these are those big cost items we were talking about?

MR CHAPMAN:  Yes.  Yes.  They are the items that we have picked up corporately which generally tend to be those items --- larger items or ongoing items.

MS DOWSETT:  And you are saying that the local work area never sees this cost, they wouldn't know about this?

MR CHAPMAN:  I believe whilst there may be some instances where a manager would see some of that, if we required their input to a specific case we were putting forward to the Employment Assistance Fund or something like that, they may see it, but they don't actually bear the cost of it in their local area, so they don't feel any impact of that even if they see it.

MS DOWSETT:  I want to turn now to the question of adjustments that are requested but not provided and, Mr Hudson, if I could start with you.  You say at paragraph 54 that you don't have this information, and so my question to you is, why not?

MR HUDSON:  So it goes to my previous answer, Counsel.  We don't collect this information centrally, and that is a gap from my perspective.  From my perspective, understanding whether or not the workplace adjustment policy is achieving the outcome it is designed to achieve, it's difficult to make that judgment without data, and so this is an area we are looking to understand better through our next diversity inclusion strategy next year, plugging the gap.

MS DOWSETT:  Thank you.

Mr Chapman, this is addressed in paragraph 83 of Mr Page's statement, and he refers to adjustments not being provided if the ATO is unable to accommodate the request and then lists things such as security constraints, compatibility issues with the ATO systems and that other employees might be impacted negatively or it might contravene OH&S policy.  You've adopted his statement, so do I take it from that, you agree these are the reasons the ATO might say no to a request?

MR CHAPMAN:  Yes, that is correct.

MS DOWSETT:  Do you accept that the statutory test is not whether or not ATO is able to accommodate a request?

MR CHAPMAN:  Yes.  I think there are some, as I understand it, some limits in terms of unjustified hardship, but in general, yes.

MS DOWSETT:  And so that phrase, "unjustifiable hardship", is that something that you're familiar with?

MR CHAPMAN:  I have a level of familiarity with it, yes.

MS DOWSETT:  Is it something that's addressed in the training that is given to the people who make decisions about whether to provide adjustments?

MR CHAPMAN:  Yes.  I believe that is the case.  We certainly have written materials that we make available to people who are involved in those decisions that do go to explaining that very concept.

MS DOWSETT:  Would you be confident to say that notwithstanding what is in  
paragraph 83, that the ATO only declines to provide requested accommodations where it would impose an unjustifiable hardship to do so?

MR CHAPMAN:  Yes.  I think that is calling out those examples as outlined at paragraph 83 as examples of that, yes.

MS DOWSETT:  Turning to you then, Mr Aikman, at paragraph 69 of your statement   


MS DOWSETT:  --- sorry, I'm just having trouble with the folder.  You indicate that the NDIA, the most common reasons why an adjustment has not been provided, you've given us (a), (b) and (c).  (a) is it is not considered reasonably practicable after consideration of the relevant legislation and standards.  Do you see that in your statement?

MR AIKMAN:  Yes, I do.

MS DOWSETT:  Do you accept that ‘reasonably practicable’ is not the test in the relevant legislation?


MS DOWSETT:  So if the NDIA is making decisions on requests for adjustments by reference to the incorrect test, does that suggest to you, you need to review your policy and the training that supports it?

MR AIKMAN:  Counsel, thank you.  We will do that.  If I could say further, in terms of the consideration for reasonable adjustments, the agency has a posture of always looking to find the reasonable adjustment and there are very limited instances, I believe, where we are unable to provide a reasonable adjustment.  So for the vast majority of the requests we're able to facilitate it.

MS DOWSETT:  Thank you.  I want to move now very quickly to the final topic of workplace passports.  And each of your agencies has identified this as something you use or you make available on a voluntary basis to be accurate.  In his evidence on Monday, Mr Innes spoke about these employment passports as a way for the adjustments to be effectively carried with a person throughout their employment.  So if they are transferred or promoted, their approved adjustment can just go with them.  Firstly and very briefly, do you each agree that is what its purpose is in your agency?  I will begin with you, Mr Hudson?

MR HUDSON:  Yes, I do.

MS DOWSETT:  Mr Aikman?

MR AIKMAN:  Yes, I do.

MS DOWSETT:  Mr Chapman?

MR CHAPMAN:  Yes, I do.

MS DOWSETT:  Mr Aikman, you've provided the Royal Commission with the copy of your agency's employees with a disability annual survey?


MS DOWSETT:  Commissioners, you've that at Tab C 13D.  Mr Aikman, in that survey less than half of the respondents to the survey who indicated that they used the passport rated it as effective in supporting the continuity of their arrangements?


MS DOWSETT:  What steps has the NDIA taken to understand what sits behind that result and how they can improve the effectiveness of passports?

MR AIKMAN:  Yes.  Thank you, Counsel.  So as a consequence of that survey work has commenced in terms of the development of our commitment.  Part of that commitment is to review specifically the passport.  We recognise that there is a low take up and part of it being its voluntary status and I think, secondly, the decentralised way in which it is being managed.  We certainly ascribe to the objective of wanting to ensure that employees do not have to relive, rejustify, the reasons for which a workplace adjustment has been provided and that should carry through in all aspects of either in the current role or any other role that a person may do in their employment with the agency.

We have as part of our action plan, as part of our disability commitment to work with our representative group which we call the Employee Disability Network and we will be working with that specific group of people to ensure that people with disability provide input in terms of the co design and consultation and then as a consequence of that, and I do not know the outcome at this point, but we will revisit and obviously implement changes to improve its uptake and its effectiveness.

MS DOWSETT:  Thank you.  Turning to you, Mr Hudson, the template passport that appears in your department's policy has at the very end an email address inviting the user of the passport to email so that the use of the passport can be tracked.  Are you able to tell us how many workplace adjustment passports are used in your agency?

MR HUDSON:  So noting they are voluntary, we have 164 staff who currently identify as having a disability.  There is no requirement for any employee to share that centrally.  However, I can advise the Commission that 12 individuals have shared their passport with the central diversity inclusion team.

MS DOWSETT:  So when you say shared their passport, that has allowed you to have access to it or just told you that they're using it?

MR HUDSON:  No, actually allowed access to it, so providing us with a copy of their complete passport.

MS DOWSETT:  It is a low take up rate?

MR HUDSON:  Well, as I indicated, it is a voluntary thing so we shouldn't assume that every individual employee will have a passport to begin with.  And then, secondly, sharing it with the cental team is voluntary.  Notwithstanding that, 12 is a very small number.  One of the things that I've asked the team to look into along with those other couple of things I mentioned earlier is whether we can actually get a sense of the actual take up and effectiveness of this particular activity that we have in place.

MS DOWSETT:  And finally to you, Mr Chapman, are you able to tell the Royal Commission anything about the use of workplace passports in the ATO and how effective they are at achieving that goal of continuity of adjustments?

MR CHAPMAN:  So we do have passports.  We currently have approximately 75 in place, 75 employees with current passports.  It isn't just to assist the employee if they move throughout the organisation but obviously being a in a larger organisation where you have changes in managers come through, it also assists with smoothing that process.  It might not be the individual that moves but the person they report to that moves.

We, as my colleagues have identified, there is definitely potential for us to make further improvements and so that is one of our current actions that is kicking off to look at what it is we will need to do engaging our employee and our allied network as well as other stakeholders to inform where we might take that moving forward as well.

MS DOWSETT:  Thank you.  Just one final point.  When I was asking you about statistics, Mr Chapman, I got the numbers around the wrong way and my team of instructing solicitors have pointed out to me, in the ATO Census for 2021 the correct number is 1,126.  Mr Chapman, do you agree with that?

MR CHAPMAN:  That certainly sounds about right.  I can't tell you the Census number off the top of my head but that is about the number, yes.

MS DOWSETT:  Okay.  Thank you.  I said 1,162.  You agreed with me.  I just want to make sure we've got it round the right way.  Thank you.

No further questions, Commissioner.

CHAIR:  Thank you very much.

Commissioner Ryan, do you have any questions?


COMMISSIONER RYAN:  Just a couple.  We are focused largely on adjustments but I do find useful in your submission from the ATO you have provided some detail among RecruitAbility.  And among the data you've provided, it indicates about 8,000 people or nearly 9,000 people who have used RecruitAbility, only 369 which is about 4 per cent of the people who have used it have gone on to be appointed.  Does it suggest that 96 per cent of people don't get an appointment using that process, it perhaps might suggest it might need to be evaluated as to whether it's (a) working or (b) a valuable tool in increasing disability employment?

MR CHAPMAN:  I think it's very challenging to draw that conclusion from those numbers purely because that is the number of people who have applied for a role selecting that box.  And if I look at last financial year, we had in excess of 80,000 applicants for roles but certainly it's a very small portion of that 80,000 who we were in a position to hire.  So these are numbers of applicants, not necessarily total number of people who we gave roles to, if I can draw that distinction.

COMMISSIONER RYAN:  That's true.  But you report that 13 per cent of the people were allocated to a talent pool.  My understanding is that means they met the requirements to be appointed but someone else must have been better than them so they're in a talent pool.  Have we any idea how successful any of them might be?  My general experience is talent pools are not greatly accessed within the public service.  People like to do a fresh recruitment.  So it just means a lot of people are going through a process in which they are not quite successful.  We might need do to something else to enhance their success, mightn't we?

MR CHAPMAN:  Look, potentially.  I think we certainly maintain active merit lists as you're suggesting, to assist us with filling subsequent vacancies throughout the year.  So we certainly don't appoint everybody who makes it through to one of our merit lists or talent pools as you've referenced them as.  So there will be people who have identified with RecruitAbility who do not gain a position as there will be people who have not identified or ticked the box to say that they are seeking RecruitAbility, who will also not get a position.

We are actually kicking off a review early in the New Year with the Australian Network on Disability to become a confident recruiter which will help us to address any potential issues that exist of the nature that you're referring to.  We see this as an ongoing focus of work, certainly not something that we've addressed the challenges that already exist.  We know we have more work to do and we are continuing on that path.

COMMISSIONER RYAN:  Using the data that you provide on page 2 of the submission from the ATO it would indicate you need roughly 1200 more people with disability to be employed in the ATO to meet the Australian Public Service target of 7 per cent of people with a disability working for the ATO.  Unless you are going to rely entirely on getting people to move from a survey reporting anonymously to reporting it specifically, that would suggest a very vigorous program of recruitment of people with disability is required.  But there is nothing in your submission which would indicate that you have addressed yourself as to how you might review and revamp the way in which you do external recruitment in order to make that happen.  Is there any reason why that is not a consideration?

MR CHAPMAN:  No.  I believe that actually speaks to the very point I was just making about our work to become disability confident recruiters and we've certainly had a range of training that we've been conducting across all of our recruitment team members and delegates.  Over the last year in particular, we've increased our focus there.  As well as you will note in the submission the trialling of affirmative measures, recruitment processes as well over the last six months that we've been doing to further increase numbers.

I guess the other thing I would flag is I think you may be looking at Mr Page's statement.  I also provided an updated statement.  We've seen an increase of 50 per cent in the percentage of our staff who identify with disability since Mr Page's statement, on account of us actually communicating the awareness of the importance of people identifying where they feel comfortable doing so and the potential benefits.  And we've also been reviewing the processes through which people can actually capture and record that information to make it easier for them to do so.

So we are continuing to see that number increase but we will also be continuing our efforts to improve recruitment including a review of our neurodiversity recruitment program recently which we will be conducting a new round of next year as well.  So we have a range of programs in place that we expect to see further disability representation.

COMMISSIONER RYAN:  Thank you.  Thank you, Mr Chair.

CHAIR:  Thank you.  Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  Just to follow on from Commissioner Ryan and also to relate back to Mr Graeme Innes' evidence earlier in the week.  Mr Chapman, is it in your KPIs or the Secretary's KPIs about getting the recruitment of people with disabilities up to 7 per cent and retention and reasonable adjustment?  Are there KPIs that you have to meet on this topic?

MR CHAPMAN:  We certainly have KPIs in place for representation.  Now, we don't specifically tie that to recruitment because we actually see that     we know through the employee census that we have more people in the organisation who have identified as having disability through that process than they have in our HR systems.

So we actually think there's more work we also need to be doing to ensure inclusion within the workplace that will lift that.  That is something that we have in the ATO's corporate plan which we published externally with commitments and targets.  It is something that we report on in the Commissioner of Taxation's annual report which is tabled in Parliament and it is certainly something that is in my business plan.

And, more importantly, we are actually, as part of our new diversity and inclusion strategy, we have said this should not be purely HR driven.  To be a truly inclusive organisation we require all leaders to be held accountable and so through our people committee what we will be doing is actually developing contextualised targets for each of our business areas that their senior leaders will be accountable for as well.  I will be responsible for the organisational approach.  But we will be ensuring that all areas across the organisation and leaders are held accountable as well.

COMMISSIONER GALBALLY:  And Mr Hudson, a similar question to you as to where it is measured.  Is it measured at Secretary level?  Is it in their KPIs or is it in yours or where is it?

MR HUDSON:  Commissioner, certainly the Secretary as the accountable authority is accountable for all performance measures in the organisation.  This is a particular target and therefore a case guide that we have.  As the Chief Operating Officer I'm also accountable, but a bit like with Mr Chapman, it's not something that we point to a single individual.  What we are looking for is a broad approach across the organisation where everybody contributes to achieving the outcome.  But yes, ultimately the Secretary as the accountable authority has that accountability.


Mr Aikman, do you want to answer that in terms of the NDIA?

MR AIKMAN:  Yes.  Thank you, Commissioner.  I probably build on largely some of the comments that have already been made.

I think at the headline level, is there an explicit target that's attached to, you know, the performance of any senior executive?  It forms part of, if you like, a number of KPIs that the organisation seeks to achieve.  We regularly report on this internally so that the accountable executives are aware of the performance across each of the groups and divisions within the agency.  And, of course, we also publish the corporate plan and our reporting against that corporate plan externally each year.


Mr Chapman, I just wanted to return to the item that was put up on the screen, number 18 for a recruitment where I thought it said "required to declare" if they have a medical condition or disability, that it wasn't optional.  It reads "required" and it read "required" on the screen, I think.

MR HUDSON:  That was the reasonable adjustment, and that is a mandatory field.

COMMISSIONER GALBALLY:  No, that is the "Do you require an adjustment" and that's mandatory, but there was one before that.

CHAIR:  I rather thought that question was asked about that.

COMMISSIONER GALBALLY:  Yes, it was asked but it was answered that it was ---

CHAIR:  Maybe Mr Chapman can let us know about that.

COMMISSIONER GALBALLY:  The reason I'm asking is because I think it's a very important point as to whether people are required to declare their disability or their medical condition, so I would really like to know about that.

CHAIR:  Mr Chapman can give us an answer to that in writing.

COMMISSIONER GALBALLY:  Thank you.  My final question ---

CHAIR:  I'm sorry, I think we are running out of time, Commissioner Galbally, and we might just end it there, if you don't mind.  Thank you.

Thank you very much.  I understand that nobody will wish to ask any questions of the group, so thank you very much for your attendance, for the evidence you have given and statements that you have provided.  We appreciate your statements.  It's now 1.05.  I take it you wish to adjourn for 45 minutes?


MS DOWSETT:  I wish to do the tendering before we adjourn, if I may, Chair?

CHAIR:  Yes.  All right.  Yes.

MS DOWSETT:  I tender the statement of Liam Page dated 18 June 2021 proposed to be Exhibit 19 20 with annexures 19 20.1 through to 19 20.5.

The statement of Bradley Chapman dated 27 October 2021 as 19 21.

The statement of Hamish Aikman dated 23 June 2021, 19 22 with annexures 19 22.1 through to 19 22.10.

The statement of Adrian Hudson dated 18 June 2021 as 19 23 with annexures 19 23.1 through to 19 23.9.

CHAIR:  Yes.  Those documents may be admitted into evidence.  They will be given the exhibit numbers indicated by Ms Dowsett.

Thank you very much.  It's now just after 1.05.  We will resume at 1.50.








ADJOURNED    [1.05 PM]

RESUMED    [1.50 PM]

CHAIR:  Yes.  Thank you.  I understand that there is an appearance to be announced for WorkSafe Victoria.

MS HARRIS:  Yes.  Thank you, Chair.  If the Commission pleases, I appear for the Victorian WorkCover Authority, WorkSafe Victoria.

CHAIR:  Thank you, Ms Harris.

Yes, Ms Eastman.

MS EASTMAN:  Thank you, Commissioners.

Commissioners, all Australian States and Territories have laws that impose duties on persons conducting what are described as business and undertakings, and that includes employers.  The duty is to ensure the health and safety of those in the workplace and to eliminate risks as far as reasonably practicable.  So a person who conducts a business or undertaking must ensure, so far as reasonably practical, that the workplace itself is safe for workers.  Workers include not only employees but also contractors, volunteers and students gaining work experience.

It means employers must have a keen eye to ensure the maintenance of the working environment, to check on the safety in the workplace, to ensure safe use and handling of the way in which, for example, substances in the workplace are used.  But work health and safety is not just limited to physical risks.  It's now well accepted that the health of workers and the conditions in the workplace should be monitored in a way that prevents illness or injury.

In more recent years there has been a recognition that this includes addressing issues such as bullying and harassment in the workplace.  But the duties don't necessarily and exclusively rely on the employer.  That workers themselves have duties to take reasonable care for their own health and safety.  The reasonable care is to ensure that their acts and omissions in the workplace do not adversely affect the health and safety of others.  And there is also an obligation to comply with reasonable instructions in relation to maintaining work health and safety.

Commissioners, at Public hearing 9 you heard evidence from Suzanne Colbert from the Australian Network on Disability, an organisation that has been referred to by a number of witnesses at this hearing, about the result of Comcare's 2018 Employer Mobilisation Project.  The project involved a survey of about 2,400 people involved in hiring and management of staff and/or the development of staff policies and initiatives.

It also was accompanied by a series of in depth interviews to get a bit of an insight in terms of the experiences and perceptions within organisations.  Specifically to the extent to which organisations were open, confident and had the capacity to support people with disability in the workplace.  This research revealed that employers tended to focus on the risk when hiring people with disability, and a presumption that people with disability include the associated risks of heightened injury and the risk of liability for employers.

So the identification of these risks raised two important issues.  In the area of regulating workplaces and employment, there is an obligation to ensure that all workers maintain health, safety and welfare.  And secondly, we know that in this area, there is also an obligation that employers have relevant insurance in the form of  
workers compensation schemes.

The question for this panel is, if these two areas, work health and safety, and the regulation of workers compensation schemes, which are intended to support and provide safe working conditions are a reason for excluding people with disability, then the Royal Commission needs to understand why and what needs to be done to address perhaps the myths and the misapprehensions that people with disability are themselves a risk.  So this panel, we have a fairly large panel.  We have representatives from Safe Work Australia.  Safe Work Australia is charged with developing national policy in relation to work health and safety and workers compensation.  We are also joined by two regulators, Comcare and WorkSafe Victoria.

I might start just by introducing the panelists and then we will address a number of particular topics.  Can I start with Safe Work Australia.  I think Ms Michelle Baxter is part of the panel but you're very distant, so I'm not sure which one of the three people sitting in front of a green wall is Ms Baxter.








MS BAXTER:  I'm the person sitting in the middle.  To my left is my Deputy CEO Amanda Johnston, and to my right is Leah Edwards.

MS EASTMAN:  Thank you.  Ms Baxter, you have prepared a statement for the Royal Commission.

Commissioners, you will find that in Bundle A at Tab 52.

Ms Baxter, you are the Chief Executive Officer of Safe Work Australia?

MS BAXTER:  Yes, that is correct, and I'm also a non --- I beg your pardon.

MS EASTMAN:  You have prepared a statement dated 3 September this year?

MS BAXTER:  Yes, I did.

MS EASTMAN:  Have you had an opportunity to read the statement?

MS BAXTER:  Yes, I have.

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

MS BAXTER:  None.  Thank you.

MS EASTMAN:  Are the contents of that statement true and correct?

MS BAXTER:  Yes, they are.

MS EASTMAN:  I understand that you are giving evidence in relation to the content of your statement; is that right?

MS BAXTER:  That's correct.

MS EASTMAN:  Now, you have Ms Johnston with you, the Deputy Chief Executive Officer, and Ms Edwards, the General Counsel.

Now, can I ask both of you, you have not prepared any statement for the Royal Commission?

MS JOHNSTON:  No, we have not.

MS EDWARDS:  No, we have not.

MS EASTMAN:  Can you tell me what your evidence is intended to address today?

MS EDWARDS:  Well, if I can start, Leah Edwards here, General Counsel.  I understood part of the panel was to explore the issues raised in Ms Baxter's witness statement and to explore the operation of the model health and safety scheme, its interaction with disability discrimination legislation, equal opportunity legislation, and in that regard both Ms Johnston and myself considered that we had appropriate knowledge and understanding of the relevant     the wider employment regime, the operation of the model laws, and the various points of intersection with disability discrimination legislation.

MS EASTMAN:  Is it the case that for the two of you, that you are proposing to answer questions on what basis, that Ms Baxter is unable to do so?

MS BAXTER:  The purpose of us being here is to provide as much assistance to yourself and the Commission.  There are matters that I have some detail of, of which Ms Johnston and Ms Edwards have far greater detail and we thought that would be of great assistance today.

MS EASTMAN:  Well, thank you for that clarification.  So Commissioners, there are three representatives from Safe Work Australia and you have a statement from one only.

Mr Radford, can I turn to you.


MS EASTMAN:  Commissioners, this is Colin Radford.  He is the CEO of the Victorian WorkCover Authority which operates by the name of WorkSafe Victoria.  Is that right?

MR RADFORD:  Yes, that's correct.

MS EASTMAN:  You've prepared a statement for the Royal Commission dated 22 October?

MR RADFORD:  Yes, I have.

MS EASTMAN:  Commissioners, you will see a copy of that behind Tab 60 in volume A.

Mr Radford, have you had an opportunity to read your statement?

MR RADFORD:  Yes, I have.

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

MR RADFORD:  No, there are not.

MS EASTMAN:  Are the contents of the statement true and correct?

MR RADFORD:  Yes, they are.

MS EASTMAN:  I will come back to you in a moment.

Then we have two representatives from Comcare.  Ms Weston, can I start with you, you are the CEO of Comcare?


MS EASTMAN:  You have prepared a statement dated 3 September?


MS EASTMAN:  Have you read that statement?

MS WESTON:  I have.

MS EASTMAN:  Are there any changes you wish to make to the statement?

MS WESTON:  A small change.

MS EASTMAN:  Can you tell me what that is?

MS WESTON:  As noted in Ms Bekis' statement, she has moved to a position in the Federal Department of Health.  Therefore I need to amend my statement at paragraph 55 to reflect that Ms Bekis is no longer Comcare's SES Diversity Champion, or Chair of our Diversity Inclusion Group.  These roles have now been taken up by another member of Comcare's Senior Executive Service.  I'm not aware of any other corrections that need to be made.

MS EASTMAN:  Thank you, had Ms Weston.  With those corrections or perhaps by way of clarification, are the contents of your statement true and correct?


MS EASTMAN:  Ms Bekis, you are Natalie Bekis?


MS EASTMAN:  We have heard you were the General Manager of Strategic Partnerships and Engagement Group of Comcare, but you've now moved to the Department of Health?

MS BEKIS:  Correct.

MS EASTMAN:  I think you foreshadowed that around the time you were preparing the statement.  You have made a statement.  Commissioners, it appears at Tab 10 in Part A with some amendments to that statement which the Commissioners have in writing at Tab 17.

Are there any other corrections that you wish to make to your statement?

MS BEKIS:  No, there are not.

MS EASTMAN:  Are the contents of that statement true and correct?


MS EASTMAN:  Ms Bekis, while I've got you, I might start with the Employer Mobilisation Project.  You refer to that in your statement at paragraph 39 in the context of something called a Collaborative Partnership.

The Royal Commission has heard last year, and also through your evidence, about the Employer Mobilisation Project, and the results of that research indicating that there were some fears or perhaps some reservations about employers taking on employees with a range of disabilities.  Is that right?

MS BEKIS:  That's correct.

MS EASTMAN:  Now I might just put up onto the screen the document that you've provided to the Royal Commission, which is not the whole of the report, which is very detailed and has lots of tables, but you very helpfully provided a document that is described as an infographic or summary.  If we turn to the second page of that document which has the percentage numbers on that, is this something that you're familiar with?

MS BEKIS:  Yes, it is.

MS EASTMAN:  Looking at the results of this, research indicated that 50 per cent of the people who participated in the survey were not confident in their business's ability to support people with physical or psychological disability or a health condition.  Fifty three per cent believed the workplace culture is not supportive of people with disability with a physical or psychological disability or health condition, and 36 per cent believe their workplace has low capacity to accommodate people with a physical or psychological disability or health condition.

So that was the broad overarching finding.  And then this document, if we scroll down a bit, sets out the keys to barriers to recruiting, supporting and adjusting.

Now, one of the findings was that most businesses feel that the loss of sight would be the most difficult disability to accommodate.  And you will see on this page that there are a range of different types of disability, if I can describe them broadly that way, and the response of employers to, could I put it this way, the employer's confidence in engaging people with a particular disability.

Now, please correct me if I've done any disservice in trying to summarise the results in a very shorthand way.

MS BEKIS:  No, that is correct.

MS EASTMAN:  The purpose of this research was to be part of a broader  
collaboration process which you've set out in your statement, and it may assist the Commissioners to understand the context of this research.  If you have your statement with you --- and if you need to refer to it, let me know, but --- are we right in understanding that there's a piece of work that involves five pillars and one of the pillars related to this research, that the balance of the pillars is really looking at a very holistic approach to identify what might be attitudinal barriers, but also practical measures to ensure that there will be increased workforce participation for people with disability?

MS BEKIS:  Yes, that is correct.  The only thing I would add is that it does take a system, or systems approach.  So one of the things is looking at the system as a whole.  You've heard from a number of people that from individual systems, the Collaborative Partnership to improve work participation aims to look at the systems as a whole cross sectorially across Australia's income and benefit systems.

MS EASTMAN:  Now, looking at the way in which the partnership operates, you tell the Royal Commission at paragraph 41 that there are a number of partners in both the public and private sectors.  So this includes, at a public sector level, the Department of Education, Skills and Employment, the Department of Social Services, the National Disability Insurance Agency, and the Department of Health.  They are all Commonwealth agencies, I take it?

MS BEKIS:  Correct.

MS EASTMAN:  The non public sector partners included the Insurance Council of Australia, Employers Mutual Limited, the Australasian Faculty of Occupational and Environmental Medicine and the Australian Council of Trade Unions, together with two expert advisors.  Is that correct?

MS BEKIS:  That's correct.

MS EASTMAN:  Are we right in understanding that Safe Work Australia is not part of the Collaborative Partnership?

MS BEKIS:  That's correct.

MS EASTMAN:  Looking at the list of people involved, there is no organisation that would be, if I could loosely describe, a disability representative organisation?

MS BEKIS:  That is correct.

MS EASTMAN:  Is there any reason why there is no representation from people with disability in the Collaborative Partnership?

MS BEKIS:  There is probably     so out of individuals who have spoken to the five pillars, at an individual project or pillar level, there is engagement with disability advocates and a variety of employers and other stakeholders at that level working on  
the individual work or forming part of the steering committee for that work.  But at the Collaborative Partnership level, we were seeking in kind contribution or financial contribution towards this work.  And at this stage, no one has     it is open to anyone to come forward to be a member.  We have worked with Anne and Suzanne Colbert, who you have already mentioned, is familiar with this work and one example of being part of the work that we have been doing at the individual project level.

CHAIR:  Ms Bekis, could I ask you to slow down a little with your responses because we have to take a realtime transcript and translate into Auslan.  If you go a little bit slower, that would help.

MS BEKIS:  All right.

MS EASTMAN:  So just summarising the pillars, and you have set this out in some detail in the statement, Pillar 1 and Pillar 2 are focused on schemes and systems as you've described.  That's measuring the movement of people between systems and supporting people moving between systems.  Pillar 3 and 4 is focused on employers and workplaces, and that's improving employer capability.  Pillar 4 is driving cultural and behavioural change and Pillar 5 focuses on providers providing general practitioners support to facilitate work participation.

Can I ask you how the research done for Pillar 3, which is the Employer Mobilisation Project that we've just looked at, how has that assisted in developing the work for Pillar 4 and can you tell the Royal Commission at what stage is the Pillar 4 work, which is driving cultural and behavioural change, how is that progressing?

MS BEKIS:  So the work of Pillar 3 has been published and is publicly available and we've also been promoting the findings and the insights across the employers and across the stakeholder groups that do follow the Collaborative Partnership to improve workplace participation.  So partly it's about raising awareness.  That work is being included in the future strategy now around this work that we've been working with the Department of Education, Skills and Employment on.  I also refer to my statement around future work that we've been doing with Swinburne University looking at employment services more broadly.

In terms of Pillar 4, as I mentioned earlier, this work is being co funded by the members that you have listed, Ms Eastman, and at this present time we are not in a position financially to be able to raise an above the line campaign.

What we have done, though, is engage with our partners, Department of Social Services, who have the lead around the National Disability Employment Strategy, and we have offered to provide our insights, research and findings to support their work, which is obviously subject to further budgetary reviews and processes that still need to occur.  But certainly we are very much and very keen to support where we can those other organisations that have the funding and support to carry this forward.

MS EASTMAN:  Ms Baxter, you've set out in your statement the functions of Safe  
Work Australia as the national policy body in Australia and this includes the functions of developing and evaluating national policies and strategies, developing and evaluating a model work, health safety legislation framework, undertaking research, collecting, analysing, reporting data, developing national education and communication strategies, and a range of other matters that involve both advice to Commonwealth, State and Territory regulators.

This work that Comcare has undertaken as part of the Collaborative Partnership would be very important work for your agency to be involved in, would it not?

MS BAXTER:  We are aware of the work that is being undertaken and are closely watching it as it develops.

MS EASTMAN:  But do you accept it would be relevant to the functions that you are required by the statute to discharge?

MS BAXTER:  So my understanding is that the work that Comcare is doing goes towards primarily pre engagement of a worker.  Work health and safety laws operate post the engagement period, they come into play, that's when the jurisdiction for work health and safety is enlivened ---

MS EASTMAN:  So are you telling me it's relevant or not relevant?

MS BAXTER:  It's work that we're observing and tracking but it's not squarely within, in our view, the work health and safety remit.

MS EASTMAN:  All right.  So in terms of tracking, what have you done with respect to tracking this work done by Comcare as part of the Collaborative Partnership?

MS BAXTER:  So we work closely with Comcare.  I have a very strong relationship with the CEO of Comcare, we regularly discuss work that we each have on hand ---

MS EASTMAN:  Sorry to jump in, I'm asking about the Employer Mobilisation Project, not generally the relationship between the agencies.

MS BAXTER:  I'm not sure that I've got anything I can say of any substance on that.  I can have a look and come back to the Commission in terms of any work that we are specifically doing in relation to that project.

MS EASTMAN:  Mr Radford, this project is not Victorian specific, but are you aware of the work undertaken by Comcare as part of the Collaborative Partnership?

MR RADFORD:  No, I was not aware in any detail until Ms Bekis explained it.

MS EASTMAN:  Part of the function of WorkSafe Victoria is also to do research; is that right?

MR RADFORD:  Yes, we do.

MS EASTMAN:  Has your agency undertaken research of this kind to look at the question, for example, of what might be perhaps reluctance or reservation about employers employing people with disability?

MR RADFORD:  I might take that on notice, if I may.  I'm not aware that we have done research specific to that question.  But I will, if I can take that on notice, I will advise the Commission accordingly once I've been able to establish whether we have done so.

MS EASTMAN:  Thank you.

Ms Weston, you've said in your statement that Comcare has no data or evidence to indicate whether a person with a disability creates a greater health and safety risk in the workplace.  That's what you say at paragraph 43?


MS EASTMAN:  To the extent you say that there is no evidence or data, other than the work done as part of the Employer Mobilisation Project, are we right in understanding that Comcare doesn't collect data that seeks to measure the extent to which a person with disability either creates a work health and safety risk in the workplace, there is nothing that even measures that?

MS WESTON:  So the employment of a person with a disability wouldn't create a     I just step back a moment.  With my workplace health and safety hat on, we did a trawl through our work health and safety helpdesk people with narratives on concerns and notifications, and there was very little reference to disability.  Some things, for instance, around disability toilets and, of course, (inaudible) which applies across the board potentially to anyone.  So we were not in that trawl through of the script, there was not     definitely not a large number of anything relating to disability in that.  We don't collect a person's disability status when they call to notify or someone has a concern just meeting our privacy obligations there.

In my role as workers compensation, I think one of the things that's referred to on the Public Service Commission's website is some research by Grantham, SL, 2002, that says that it is trying dispel a myth that people with a disability can cause injury in a workplace.  From a workers compensation perspective --- sorry, I will speak a bit more slowly --- it's when there is an injury that there is an issue around premium, for instance.  So it's not the fact that someone has employed a person with a disability, it's actually the injuries.  And we are not seeing a theme of people with a disability being injured to an extent that, you know, it's significant.

In our jurisdiction, I guess there is only 230 employers, 220, that sort of number who are Commonwealth departments and agencies or 40 self insured licensees.

MS EASTMAN:  If you say that 19 years ago, there has been research in effect seeking to debunk the myth that having a disability means that you posed a possible work health and safety risk, do you have a view why that myth seems to continue and to be part of the reasons why employers are reluctant to employ people with disability?

Ms Bekis, I will ask you to respond to that as well because you are very close to the research done as part of the Collaboration Project.  Do either of you have a view as to why that myth continues to exist?

MS WESTON:  I think from our jurisdiction, the evidence would be that it is a myth.

MS EASTMAN:  Sorry, Ms Bekis, did you want to add to that?

MS BEKIS:  Yes, Ms Eastman, I just wanted to confer with Ms Weston.  It would appear to be a myth, but the research that was done re employment mobilisation unpacks that further.  There is a number of layers to that myth.  Employers are really seeking an opportunity to share the risk in understanding, so I think in that research we outlined six sort of groups of employers, and they are at various levels of maturity and understanding, both in terms of what is a health, be it a physical or mental health injury or condition, and, secondly, what role they can play to provide work accommodation.  And thirdly, what it is that the psychosocial safety climate or the climate in which that works, and whether or not they are perceived otherwise, myth or otherwise, is fit to support someone.

So I think that there is a few things in that research that has highlighted and I think a few of your other witnesses have conferred that in terms of, there are further opportunities around how we support employers practically with that.

MS EASTMAN:  Mr Radford, has WorkSafe Victoria collected any data or done any research that indicates that a person with a disability creates a greater health and safety risk in the workplace?

MR RADFORD:  No, we don't.  I'm not aware that we have any research that would support that hypothesis, and in fact as part of our role as the workplace injury insurer, a key function of WorkSafe is to engage with employers to support the safe return to work of injured workers.  So through that activity we work directly with the employers to see the capacity and the capability of an injured worker returning to work, I guess, rather than look through a deficit lens of what are the risks involved, we look at what are the opportunities and what are the benefits, and that's a key legislative function of our organisation.

MS EASTMAN:  So can I ask you about what you say at paragraph 17 of your statement then, where you say WorkSafe considers various issues associated with work related injury and disability in conducting its work, and this is in your regulator function.  And you say this, the OHS --- just to clarify, Victoria hasn't adopted the  
model law, so you have an Occupational Health and Safety Act 2004.

MR RADFORD:  That's correct.

MS EASTMAN:  We might come to that distinction if it becomes necessary, but you say the Victorian legislation does not include specific provisions about hiring a person with disability.  But you make this qualification, I want to understand it:

However, both pre existing or acquired injury in disability may be relevant to the application of its provisions.

How is a pre existing disability relevant to the application of the OHS Act in Victoria?

MR RADFORD:  So as the occupational health and safety regulator, we look at the work environment and the systems of work in any workplace and that can extend to, if there are people with disability in a workplace, that there are appropriate safeguards and controls in place to protect the health, safety and wellbeing of all persons in a workplace.

MS EASTMAN:  Can I just understand this clarification then.  You're not saying having a disability is the risk?  You are saying, are you not, that work circumstances or surroundings may create the risk?  Is that what you mean to say?

MR RADFORD:  That's entirely correct.  The example might be a person with disability who might have some additional mobility needs.  If we were conducting a workplace inspection, we would ensure that those needs were being met, particularly in circumstances around being able to exit a workplace in the event of an emergency.

MS EASTMAN:  That's more an obligation, is it not, on the employer or whoever operates the business or undertaking, to ensure that their environment is safe for a person with disability, not the other way around?  Is that right?

MR RADFORD:  That's entirely correct, yes.

MS EASTMAN:  Ms Baxter, can I ask you, does Safe Work have any data or has Safe Work undertaken any research that indicate that a person with a disability creates a greater health and safety risk in the workplace?

MS BAXTER:  No, we do not have any data and we have not, to the best of my knowledge, undertaken any research.

MS EDWARDS:  Sorry, Ms Eastman, if I could just add, prior to Safe Work Australia's coming into existence, there was a piece of work done by the Australian Safety and Compensation Council in 2007, I understand it, which was a review of the evidence of the question whether people with a disability are at risk at work.

MS EASTMAN:  Yes, I referred to that in the opening on Monday   


MS EASTMAN:  --- but it hasn't been included in any evidence included by the agency.  So is this something that you would like to now provide to the Royal Commission?

MS EDWARDS:  We certainly can, but it's not work that was undertaken by Safe Work Australia.  It pre dates Safe Work Australia's existence.

MS EASTMAN:  I haven't in my questions proposed to ask you about a previous agency or organisation, so can I bring you back to my question which was focused on what Safe Work Australia has done.  And do I take it that Ms Baxter's answer means none?

MS BAXTER:  Yes, that's correct, Ms Eastman.

MS EASTMAN:  Ms Baxter, I want to ask you then about the interaction between work health safety laws and people with disability, and you've addressed this at paragraph 33 and following in your statements.

You tell the Royal Commission employers must comply with both their work health safety duties and the prohibition on discrimination in employment in the Disability Discrimination Act.  So WorkSafe Australia doesn't have any particular responsibilities or statutory functions in relation to the Disability Discrimination Act; is that right?

MS BAXTER:  Yes, that's correct.  Safe Work Australia has no responsibility in those areas.

MS EASTMAN:  Safe Work, thank you.  So when you say in paragraph 34:

There is no general proposition that an employer can refuse to employ persons with disability because they assess that the person with a disability poses a greater [work health safety] risk (whether to themselves or others).

On what basis do you make that statement?

MS BAXTER:  So the basis for that statement is in relation to the work health and safety obligation of the PCBU or employer for short     I beg your pardon, person conducting a business or undertaking or, for ease of reference, an employer, is that a person cannot refuse to employ a person with a disability simply because they assess the person poses a greater WHS risk, whether to themselves or others.

MS EASTMAN:  Can you tell me where in the Work Health and Safety Act does it require --- and I will use "the employer" rather than the full word --- to actually  
assess that a person with a disability poses a greater work health and safety risk, as opposed to whether the workplace poses a greater work health and safety risk to the person with a disability?  Do you understand the distinction?

MS BAXTER:  Yes, I do, and I might ask Ms Edwards to provide some assistance.

MS EASTMAN:  Can I ask you first on this, because this is your statement.

You told the Royal Commission that there is no general proposition on an employer refusing to employ a person because the employer assesses the person with a disability as posing a risk.  And what I want to understand is what is the basis on which you say that an employer would be assessing a person with a disability as posing a risk?  Because I cannot see this in the work health and safety legislation as an obligation on an employer to assess a particular person as a greater risk because they have disability.  So can you explain the basis of your statement?

MS BAXTER:  Ms Eastman, if I may, that's a proposition that in reading evidence given by other witnesses earlier in the year, we understood was a proposition that some witnesses might be putting, it is not a position that we in Safe Work Australia are putting.  I'm sorry for the confusion.

MS EASTMAN:  Who are the other witnesses you are referring to?

MS BAXTER:  I believe it was some of the witness summaries that I read in relation to Public Hearing 9.

MS EASTMAN:  Okay.  Do you accept that when we are looking at assessing work health and safety risk, the assessment is of the workplace and the risk arising out of the work, not an assessment of the person with a particular characteristic?

MS BAXTER:  Yes, that is correct.  But the employer would need to have regard to workers, and that process would take place most likely during the consultation that the employer is required to undertake with their workers.

MS EASTMAN:  Well, can you help me understand then what you are saying in paragraph 35 where you tell the Royal Commission that:

[Safe Work Australia] does not suggest that employers do not in fact refuse to employ persons with disability because of perceived or actual [work health safety] risk.

What does that mean?  There are double negatives in there.

CHAIR:  I'm going to say, is there a double negative officer within your organisation?  Much of the statement seems to be double negatives.

MS BAXTER:  Again, Ms Eastman, paragraph 35 goes towards the understanding  
that we have gleaned from reading some of the witness statement summaries from Public Hearing 9 as a possible proposition being put, and we were simply seeking to clarify that's not a proposition that Safe Work Australia, in relation to the model work health and safety laws, agrees with.

MS EASTMAN:  Is there anything that we can take from reading this part of your statement that you are suggesting that people with disability themselves inherently pose a risk to work health and safety and that is a factor that an employer should take into account?

MS BAXTER:  Ms Eastman, that is not what we are saying, that is not what I am saying in my statement.

MS EASTMAN:  When you say at paragraph 37 that:

[Safe Work Australia] would not support any approach that lessens or reduces the obligations on employers to ensure the health and safety of [underlined] all workers at work.  In other words, [Safe Work Australia] does not consider that removing barriers to employment for people with disabilities would be achieved through diminishing the [work health safety] protections to workers more generally.

Can I suggest to you that that reads, and I welcome you to correct me if I'm wrong in understanding what you are saying, is that if it came to a choice between managing work health and safety risk and employing a person with a disability, that the work health and safety obligations would trump any obligation to employ a person with disability?

MS BAXTER:  Ms Eastman, no, that is not what I am saying in my statement.  I am simply trying to communicate the fact that work health and safety is about the work health and safety of all workers in a workplace and others regardless of     regardless of what attributes they bring to the workplace.  And again, we were simply trying to put the point that if there were views that somehow work health and safety laws could create a barrier to people remaining in employment because, of course, work health and safety laws are only enlivened once that employment engagement period takes place, we are simply trying to clarify that we believe that the application of the laws must be the same for all workers and others in a workplace.

MS EASTMAN:  I might just put this proposition to you so I'm sure I'm clear about what you're saying.

Your agency is currently now doing a lot of work in looking at sexual harassment in the workplace.  If you assess the risk of sexual harassment in the workplace to be attributed to the fact that somebody is a woman and that might make them more vulnerable to be sexually harassed, but to meet work health and safety obligations you remove women from the workplace --- can I put that to you because if you apply that to disability, the tenor of what you seem to be saying is that you remove the  
person with the characteristics to minimise breaching work health and safety obligations.  Do you understand?

MS BAXTER:  Not at all, Ms Eastman.  The proposition that I'm putting is that the obligation is on the employer to do all that is reasonably practicable to ensure the health and safety of all workers and others in the workplace.

MS EASTMAN:  So you're not saying that meeting work health and safety obligations may require an employer to refuse to employ a person with a disability or to remove that person with a disability from the workplace?  You're not saying that, are you?

MS BAXTER:  I'm not saying that.

MS EASTMAN:  Thank you for that clarification.  One of the functions you have is to develop model codes of practice, is it not?

MS BAXTER:  Yes, that's right.

MS EASTMAN:  There are about 20 model codes of practice that have been published to date?

MS BAXTER:  I think there are more than that.  Twenty four, I beg your pardon, yes.

MS EASTMAN:  I think there's 20 on the website.  There's no model code dealing with people with disability, is there?

MS BAXTER:  No, there is not.

MS EASTMAN:  And there's no model code dealing with harassment or discrimination, is there?

MS BAXTER:  No, there is not.

MS EASTMAN:  In terms of the codes that have been published, would you agree that a number of them do touch upon what might be the rights and interests of people with disability?  Do you agree with that?

MS BAXTER:  Yes, I do.

MS EASTMAN:  For example, there's a code dealing with noise in the workplace and the risk of noise in terms of hearing loss.  I don't know if you are familiar with the detail of that code, but I'm just using that as one for example.  Are you aware of that code?

MS BAXTER:  Yes, I am.  I'm not overly familiar with it.

MS EASTMAN:  That code, for example, sets out the sorts of risks that employers should be alert to, to prevent an employee developing hearing loss or a hearing injury.  Is that right?

MS BAXTER:  Without having a look at the code, and I'm not across the detail of it, that would seem to be appropriate, yes, that that would be contained within the code.

MS EASTMAN:  But the code, for example, does not address the health and safety of a person who comes to the workplace with a hearing loss or may be deaf or hearing impaired.  It doesn't deal with matters of that kind?

MS BAXTER:  No, it does not.

MS EASTMAN:  There's a range of codes that identify risks that employers need to be aware of to avoid injury, but the codes for the most part don't address the risk to a worker with the particular disability that might be occasioned by the injury.  I'm summarising broadly.

MS BAXTER:  Yes, that's correct.

MS EASTMAN:  If, for example, we took the 24 codes and we did a search of all of them for how they address workers with disability, would you agree that we might be up to maybe 10 references to people with disability throughout those codes?

MS BAXTER:  I don't know.  But I haven't undertaken such a search so I don't know.  But if I may, Ms Eastman, we're not     my understanding is when we talk about people with a disability, this is not a homogenised group of people.  There are many, many, many different disabilities that people have and experience.  It would be very difficult to provide guidance on every single disability.  It would be very difficult, and one which neither I or my agency have sufficient expertise in.  We are not expert in the area of people with a disability.  And the way that the work health and safety laws operate is that they go towards addressing the risk in the workplace.

MS EASTMAN:  Yes.  But people with disability, of the wide range of disabilities, are also workers who may experience risk; is that right?

MS BAXTER:  Yes, that's correct.  Of course.

MS EASTMAN:  And the Royal Commission has heard today that for some workers with disability, not everybody, but some workers with disability require reasonable adjustments to be made to enable them to do their work and also to perform their work safely.  You're aware of that?

MS BAXTER:  I beg your pardon, I just missed the beginning of your statement, Ms Eastman.  Was that in relation to the Disability Discrimination Act?

MS EASTMAN:  I was asking about adjustments.  You would be aware, would you not, that some workers, not all, but some workers with a disability may require adjustments to be made within their workplace to be able to perform their work safely?


MS EASTMAN:  Are you aware of that?

MS BAXTER:  Yes, I am.

MS EASTMAN:  Are you aware, I don't know if you followed the evidence earlier today, that employers are at times somewhat confused about what their obligations are in relation to making workplace adjustments?  Are you aware of that?

MS BAXTER:  I have not been following the evidence today.

MS EASTMAN:  If I put this proposition to you, if you accept that the making of an adjustment may be a very critical element to ensuring a worker with disability's safety in the workplace, that that is the type of matter that directly engages the functions that you have under the Act, that is developing policy and strategy about making workplaces safe, is it not?

MS BAXTER:  I beg your pardon, Ms Eastman.  Are you talking about reasonable adjustments?  Because that is not a concept that exists under the model work health and safety laws.

MS EASTMAN:  I know.  That's why I'm asking you about it.  If an adjustment is something that would assist workplaces, employers and employees to provide a safe working environment as far as practicable, then clearly the making of an adjustment fits into your responsibilities with respect to policies and strategies to make our workplaces safe; I'm just asking if you agree with that.

MS BAXTER:  Yes.  But I will caveat that with, if it is reasonably practicable to do so, because that is the concept used in the model work health and safety laws.

MS EASTMAN:  Has your agency done any work in examining and understanding the approach taken by Australian employers to make reasonable adjustments in their workplaces to make the workplace safer for workers with disability?

MS BAXTER:  No, we have not.

MS EASTMAN:  Ms Baxter, are you aware of something called the Focal Point in the Australian Government?  Have you heard that expression?

MS BAXTER:  No, I have not.

MS EASTMAN:  Are you aware that the Attorney General's Department and the Department of Social Services together constitute the Focal Point for meeting Australia's obligations under the Convention on the Rights of Persons with Disabilities?

MS BAXTER:  No, I'm not familiar with that.  I'm not familiar with international conventions generally.  That's not an area that I have expertise in.

MS EASTMAN:  Do you have any recollection, and those on the panel with you may be able to assist you if you're not sure, of Safe Work Australia being asked to give any advice or be involved in any development of strategies about Australia meeting its obligation under the Convention on the Rights of Persons with Disabilities?

MS BAXTER:  Certainly not in the time that I've been at Safe Work Australia, I have no recollection of any such advice or approach having been made.

MS EASTMAN:  Ms Baxter or anybody else on the panel, have you had occasion to consider article 27, for example, of the Convention on the Rights of Persons with Disabilities?

MS BAXTER:  No, we have not.

MS EASTMAN:  Mr Radford, you are in a jurisdiction that has a Charter of Rights which is based on incorporating a range of international human rights but not the Convention on the Rights of Persons with Disabilities.  You've said in your statement that as a public authority in Victoria, that WorkSafe Victoria has to have regard to the Charter and relevant human rights in performing its activities.  It's paragraph 62, if you need to look at your statement.

MR RADFORD:  Yes, that is correct.

MS EASTMAN:  Can you tell us how has a human rights approach influenced the research or strategies undertaken by your agency?

MR RADFORD:  So the best way I could describe that, Ms Eastman, is that in developing either legislation or regulation for any Victorian Government agency, there is a     for want of a better term, a test that must be applied, and a statement made either to or by Parliamentary Council as to whether the proposed legislation or regulation complies with the Victorian Charter of Human Rights.

MS EASTMAN:  Taking in a sense the description of what the law requires, can you give the Royal Commission any examples where the impact of the Charter has resulted in a practical measure in relation to occupational health and safety or where the Charter has resulted in a change to any proposed legislation or policy touching on work health and safety?

MR RADFORD:  I'm not aware of such instances but I will take that on notice, if I may, and I will consult with our legislative team and establish and provide further advice to the Commission.  But I'm not aware of any instances.

MS EASTMAN:  One of the rights in the Charter is a right to privacy.  And one of the issues that has arisen throughout the course of this hearing and in information provided to the Royal Commission is this sort of push pull tension on employers asking for personal information around a person's disability, and the extent to which a person with disability feels safe to disclose or identify as a person with disability.  Have the privacy rights in the Charter had any bearing on any work that your agency has done in relation to addressing privacy concerns for people with disability?

MR RADFORD:  I think the best way I could answer that is in terms of work that we are trying to do through guidance that we provide primarily to employers around attitudinal change and cultural change.  So the Victorian Public Sector Commission does a regular survey of Victorian public sector employees, as you would expect, an engagement survey which would bear out in terms of what you have just suggested in terms of Victorian public sector employees themselves indicate a reluctance, as do their carers, to disclose disability or caring responsibilities, with a fear or an apprehension that it could lead to discrimination.

MS EASTMAN:  Would you accept this proposition, that if there is a fear of disclosing to an employer that you have a disability, that that is actually telling you quite a lot about the employer and the workplace?  And if there is a fear of disclosing information that may be relevant to your work health and safety, that is an issue, is it not, that engages your agency but also the Commonwealth agencies as well?

MR RADFORD:  Well, I can't speak on behalf of the Commonwealth agencies, Ms Eastman.  But in terms of my agency, the survey work conducted by the Victorian public sector, the Victorian Public Service Commission, reflects the work we've been doing through two areas.  One is our Work Well program which is where we work with employers and industry around creating mentally healthy workplaces ---

MS EASTMAN:  If I've got time that's my next topic, psychosocial disability.  But I just want to deal with this issue of disclosure, because the Royal Commission will need to think about how it addresses these questions of disclosure.  And if in a sense it's not about who should disclose or not, but it's really about the reflection of an employer understanding its workers and its people, that if the workplace is not sufficiently safe to make that disclosure, hasn't the workplace or the employer got some issues in relation to ensuring safety in the workplace.  That's a proposition I'm putting to you, and I was interested from the human rights perspective in Victoria as to whether that made a difference.

But can I ask then, Ms Baxter, do you agree that if people are reluctant to disclose a matter, that might have a bearing on both the worker and the employer discharging their duties under work health and safety laws, that has got to be something that needs to be addressed?

MS BAXTER:  Yes, Ms Eastman.  It might impact upon the work health and safety at a workplace.

MS EASTMAN:  And is this a matter of which there has been any consideration for a code of practice?

MS BAXTER:  No, it's not.  Ms Eastman, I might just, if it would assist the Commission, take this opportunity to just explain how Safe Work Australia operates?

MS EASTMAN:  I will come back to that, Ms Baxter, we've got really limited time.  You've provided a very comprehensive statement that the Royal Commission can read in terms of the functions, so I just want to focus on these particular issues that arise out of the respective statements.

Can I ask, Ms Weston and Ms Bekis, in terms of the regulatory role of Comcare but also the work that Comcare does in the workers compensation area and the rehabilitation and return to work of employees with disability, do you see this issue about a working environment that's not safe for people to be able to disclose, which may have a bearing on accessing adjustments that would minimise the risk of injury, but also create safety, is an issue that needs to be addressed?

MS WESTON:  With our regulatory hat on, Ms Eastman the employer needs to assess the hazards, look at the risks, look at what controls they can put in place, and consult with staff all through that process.  If they are not hearing about a particular issue that may have a safety implication, that is potentially a problem for that employer and, of course, the employee has an obligation, as you rightly mentioned at the beginning of your introduction, to also keep themselves and the others around them safe as well.  So potentially, yes.  In the Safety Rehabilitation and Compensation Act side of the work we do, the person is temporarily injured and we do end up having a fair bit of information as we go through the process of getting them settled and back to work.

So I think that you will know what their scenario is.  They would have been through medical assessments and so forth, so less of a sort of problem than in the WHS space, I would say.

MS EASTMAN:  This is perhaps a contradiction, is that if you have an injury that you acquire in the course of your work, the obligations to report that injury, the systems to support a worker who has an injury, and the support for the worker in rehabilitation and return to work, is all about a huge amount of information, is it not, around the worker's disability, what needs to be done to support the worker, the adjustments that need to be made to facilitate return to work?

MS WESTON:  So they have become injured ---

MS EASTMAN:  At that point.  But for a worker who comes to the workplace with a  
pre existing disability, there can often be very limited information.  So you see there is some contradiction in the terms of the way in which information about a worker might be collected and used?

MS WESTON:  Well, a person coming into an organisation, they will have had to have had a medical, and in my jurisdiction, certainly the Department is an agency, so there is an opportunity there to reveal things that may need adjustments.  So there are opportunities.  Also during the recruitment process, there is an opportunity to talk about the reasonable adjustments you might need there.  You know, departments and agencies certainly would have people in the HR team or their manager who can help them with adjustments that they need.  It may be, though, that someone won't disclose that they have a disability and, you know, you probably     most of the people in my jurisdiction would be looking to have good scores in the state of the service that they are an inclusive and supportive organisation, you know, so that is a goal of departments and agencies to do well, to encourage that culture of disclosure and sharing of the things that they might need to get themselves going well in the workplace.

MS EASTMAN:  But there's no funding for Pillar 4 of the research work that you are doing, which is very much directed at this very issue; is that right?

MS WESTON:  So yes, funding is an issue for the Collaborative Partnership.  But nonetheless, there are opportunities for us to use the knowledge that we have acquired from the Collaborative Partnership and working with those partners and agencies that are progressing the new Disability Strategy that is coming online.  So we certainly are hoping to engage with that process, push it forward.

MS EASTMAN:  I want to briefly touch on the issue of psychosocial health in the workplace.  As Ms Baxter said, there is lots of different disabilities, but the area of psychosocial disability is an area that receives perhaps increasing attention in workplaces, both in terms of the risk that is imposed to people of acquiring a psychosocial disability because of the way in which they may be treated or the conditions in their work.

Now, Mr Radford, WorkSafe Victoria has a Psychosocial Inspectorate team, and that's part of the broader regulatory functions that the Inspectorate and inspectors can assess workplaces to identify risk and identify compliance with the Victorian Act.  Is it right to understand that the Psychosocial Inspectorate focuses on monitoring and ensuring compliance with workplace safety laws in relation to psychosocial hazards, and they might be work stressors, occasional hazards.  But, in effect, anything that affects the psychological wellbeing of workers.  Has the Psychosocial Inspectorate team had a lot of work to do in recent times?

MR RADFORD:  Yes, it has.  And to the extent that we are increasing the size of that     in two elements, the size of the Inspectorate itself, but also our specialist programs team where we're hiring people with clinical experience in psychosocial hazard and prevention and identification and prevention of psychosocial hazards and  
risks.  In terms of ---

MS EASTMAN:  Does part of the identification of psychosocial hazards involve looking at what measures employers might take to make, for example, adjustments for workers in the workplace to minimise their risk?

MR RADFORD:  Yes, it does.  Including, I guess, on a number of levels the guidance that we issue around what we call mentally healthy workplaces, which is guidance around supporting employers and employees to identify potential risks and hazards, and to speak up, and to then some --- suggested controls to mitigate those risks materialising.  And a lot of work that our team has been doing actually relates to interpersonal conflict in the workplace, which is the single most significant contributor to workplace mental injury, is unresolved workplace conflict, which does include discrimination, harassment, bullying, sexual gendered harassment or violence.

MS EASTMAN:  Is there a process for the Inspectorate or agency to collect data so you can monitor progress or evaluate any measures that might be adopted?

MR RADFORD:  Again I might just take that on notice.  It's a new unit, the psychosocial unit is a relatively new function.  At the moment the way that we respond     either through a proactive inspection or what we call a response visit, there are certain terms that are captured as part of that which we can then data mine or analyse.  But I would need to confirm whether we do have any specific language triggers that might answer the question that you've asked.  I'm sorry, I don't have that information at my hand.

MS EASTMAN:  Thank you.Ms Baxter, in November 2020 Safe Work Australia commenced work to develop a model code of practice to support duty holders to manage psychosocial hazards, and you've got a draft presently out for consultation; is that right?

MS BAXTER:  We are very nearly at the point of taking the model code of practice to our member body at their next meeting in early December.

MS EASTMAN:  At paragraph 48 of your statement you say your agency notes that focusing on individuals rather than on psychosocial hazards may be problematic and inconsistent with the approach taken to physical hazards, and then you give an example that the model work health and safety laws address hazardous manual tasks rather than workers with back injuries.  But you say, "for psychological health, it may also perpetuate stigma and prevent workers identifying psychosocial hazards".  What does that mean in terms of the approach that you've adopted in developing the proposed code of practice?  So if the focus is not on the individuals but on the workplace, I'm just not sure why you say that might be problematic and inconsistent.  This is paragraph 48.

MS BAXTER:  So the draft model code that we are currently developing takes a  
similar approach to that which we have taken in relation to physical risks.  It addresses the psychosocial risks in a workplace.  Noting, of course, that an individual or a person in a workplace could themselves be a cause of risk or hazard.  But I was simply making the point at paragraph 48 that as we have with physical hazards, we believe the better approach with psychosocial issues is to deal with the risk that is or may be arising in the workplace and address it that way.

MS EASTMAN:  In terms of identifying the risk, what work has Safe Work Australia done by way of research to identify psychosocial risks and the approach that you've identified in terms of the comparison to physical hazards?

MS BAXTER:  So, Ms Eastman, if you would like me to answer that, I will need to take that on notice to provide specific detail of the work that has been undertaken in the development of the code.

MS EASTMAN:  Can I just draw your attention to paragraph 49 and you describe the work health safety inspectors with experience in assessing risk to psychological health.  And then later in that paragraph, you say that the agency is not aware of any formal research on these issues, however the agency considers that it should not be assumed that a worker with an existing mental health condition, whether disclosed to their employer or not, is more likely to be injured by psychosocial hazards in the workplace.

If there has been no formal research on the issue, on what basis can the agency suggest that it shouldn't be assumed that a worker with an existing mental health condition won't be more likely to be injured?  Again, I'm trying to deal with the double negatives in a lot of your statement.

MS BAXTER:  Ms Eastman, would it help if Ms Edwards assisted?

MS EASTMAN:  It would help, I think, us or anyone who can assist us in understanding what this paragraph means.

MS EDWARDS:  So the paragraph is attempting to put to the Commission that we are not aware of any research that suggests that people with disability, especially people who are suffering from a mental health condition or some psychological disability, are more at risk from psychosocial hazards that exist in the workplace.  And that the employer's obligation is to ensure, as far as reasonably practicable, that all workers in the workplace are not exposed to risks to their health and safety, and risks are eliminated, as far as reasonably practicable, or minimised.

But to the extent that an employer undertakes the risk assessment, and one of the intentions behind the code of practice is to provide assistance to employers in actually being able to undertake that risk assessment and better understand in their workplace and for the work that is performed in their business or undertaking the sources of psychosocial hazards, and therefore what control measures need to be implemented, it may be that the employer identifies a particular source of  
psychosocial hazard, and it may be that for that business they may identify that particular groups of workers might be more vulnerable to psychosocial hazards and the control measures would need to address those.

So for example, young workers might be more vulnerable to activities such as bullying or hazing or initiation rituals which are clearly a cause of potential psychosocial injury as well as physical injury, or that there might be people from Culturally and Linguistically Diverse backgrounds who may also be subjected to exclusion or other damaging behaviours and an employer, having undertaken that risk assessment, would need to devise control measures.

Equally, if that employee is a worker with a disability, it may be that that identified, again, things to do with bullying, exclusion, lack of consultation or appropriate consultation and the point of the code of practice is to seek to arm employers with a better understanding of identifying psychosocial risks, and one of the outcomes of the Boland review was that there was a lack of confidence on the part of employers, potentially a lack of appreciation that they owe as great a duty to ensure health and safety for the psychological health as well as the physical health, and that is what this piece of work is seeking to do, to better arm employers with the capacity to assess risks for all workers, including workers with disability and other workers who, in a particular context, might be vulnerable and therefore to identify and implement control measures that provide those employees with the protections that they are entitled to under the Work Health and Safety Act.

MS EASTMAN:  It's the case, isn't it --- this is what I'm getting at and I'm sorry if my question was opaque --- the agency is not aware of any formal research on these issues?  That's the case, isn't it?


MS EASTMAN:  So if there is no formal research on the issues, you are relying on assumptions, are you not?

MS EDWARDS:  Formal research on whether or not employees with psychosocial disabilities are more vulnerable to psychosocial     to suffering injury, we are not aware of any research on that issue.

MS EASTMAN:  One of the tasks of the agency is to undertake research, is it not?


MS EDWARDS:  Yes, that is one of the functions of Safe Work Australia.

MS EASTMAN:  One might assume, before the agency was to develop a code of conduct or a code of practice, that it would have undertaken research rather than rely on assumptions, would you agree?

MS JOHNSTON:  Ms Eastman, our work program is directed by WHS ministers and our members.  We were tasked with developing the model code of practice.  We work with a group, the strategy group, the mental health strategy group, who is made up of experts, and our jurisdictional partners, social partners and our industry representatives.  So it's not that the agency is working alone and has just decided to do the model code of practice without any understanding.  We have commissioned experts, but have we done specific research on this issue?  No, but that's not the focus of the model code of practice.  We were simply making an observation that inspectors have the view that people with existing mental health conditions may actually present a lesser risk in a workplace, and so employers should not be wary of engaging people with a mental health risk making a claim that they are more likely to be susceptible to mental health injury.  That is what we were saying.  But the model code of practice is not --- it goes to control measures dealing with mental health conditions, and we didn't need to do research on this particular point.

MS EASTMAN:  Has there been consultation with any of the disability representative organisations, specifically those with expertise in psychosocial health?

MS JOHNSTON:  My understanding is yes, but we can take that on notice to provide you with more detail of that consultation, but there has definitely been with extensive consultation.  We've engaged with the Commonwealth ---

MS EASTMAN:  I'm not asking about everybody you have consulted with, but with a disability representative organisation.

MS JOHNSTON:  And I said yes, that I think we have, and I can provide you with more detail of that.

MS EASTMAN:  Thank you.  I wanted to ask you about vulnerable workers but I might leave that topic, Commissioners.  It's addressed in some detail in the statement.

The final issue that I want to deal with before I ask the Commissioners if they have any questions is coming to the other end, which is the workers compensation end, and the support for workers returning to work after a period of illness or injury, is when you are thinking about that workers compensation model and the programs for return to work, do the agencies --- and this is Comcare and Victoria --- see this as a form of reasonable adjustment for a worker who may have a temporary disability, or do you approach the program and planning for return to work in a different way?

Mr Radford, maybe I will ask you to go first.

MR RADFORD:  Yes, certainly.  So in terms of the Return to Work Program, we would approach that according to the specific needs of the injured worker that we are trying to return to work, and so we do have compliance codes which are enforceable, which do require an employer to consider either reasonable adjustments, workplace or work stationary adjustments or a suitable alternative to allow the safe return to work of that injured worker.

An employer in Victoria must hold an injured person's position open for 12 months and must consider and work with ourselves, the injured worker and most importantly the injured worker's treating providers on modified work and appropriate and suitable return to work.  So we do look at it through the lens of a tailored program for the individual injured worker.  But in doing so, and whilst it's not part of our legislative role, helping educate employers and workplaces more broadly of the benefits of returning a person with an injury, either temporary or it can be an ongoing disability with a severe workplace injury, particularly if it's a spinal injury, the benefits of creating that culture of inclusion and accessibility.  So we certainly do look at those issues but our remit and our legislation requires us to tailor the specific program to the injured worker.

MS EASTMAN:  That is a fairly significant investment, is it not, in a particular worker in terms of rehabilitation and return to work?

MR RADFORD:  Yes, it is.  Yes, it is.  It involves the treating physicians, it involves rehabilitation providers and it can involve the costs of modifications that are involved as well.  All of those services, by and large, are funded by our scheme.

MS EASTMAN:  Ms Weston and Ms Bekis, is there a similar approach in terms of Comcare and workers in the Australian Public Service and the broader agencies captured by Comcare?

Ms Weston, we've lost your sound.

MS WESTON:  I beg your pardon.

MS EASTMAN:  Thank you.

MS WESTON:  Under the Safety Rehabilitation and Compensation Scheme, it's --- the rehabilitation authority is the employer.  So Comcare will support the employer, the Department or agency or one of the self insured licensees, when they do their role, to help them, but their role is to do those activities we talked a little bit about before, which are, you know, a rehab case manager getting the medical advice about what assistance might be needed, allied health for the physiotherapy and, of course, a workplace rehabilitation provider if expert advice is needed.  Comcare approves those workplace rehabilitation providers in that scheme.

So the Act talks about reasonable steps to provide suitable duties as the obligation on the employer.  So similar sort of words, "reasonable steps", you know, compared to your words which are "reasonable adjustments".

MS EASTMAN:  That's also a significant investment, is it not?

MS WESTON:  Yes.  That is an investment that is similar to Mr Radford's scheme.  It falls on the scheme, the costs of the rehabilitation.

MS EASTMAN:  Thank you.

Ms Baxter, one final question which I omitted to ask you earlier.  You tell the Royal Commission at paragraph 13 that there are 15 Safe Work Australia members, that includes the Chair and representatives nominated by the Commonwealth, each of the States and Territories, two members representing the interests of workers and two the interests of employer, together with yourself.  Are any of the members identified in this group people with disability?

MS BAXTER:  I'm not aware of any of the other members, but I have identified as having a disability.  But I have no knowledge of whether any of the other members of Safe Work Australia have a disability.

MS EASTMAN:  There is no requirement, is there, in terms of a membership of Safe Work Australia, for it to include a person with disability, is there?

MS BAXTER:  No, there is no requirement under the Safe Work Australia Act for that to occur, for that to be the case.

MS EASTMAN:  Thank you.

Thank you, Commissioners.


CHAIR:  Thank you, Ms Eastman.  On this occasion I will ask the Chair if he has any questions, the answer to which is yes, he does.

So, Mr Radford, what is the relationship between WorkSafe Victoria and the Accident Compensation Commission of Victoria?

MR RADFORD:  We don't have an Accident Compensation Commission, Commissioner.  There is an accident     a conciliation service.

CHAIR:  WorkSafe Victoria has taken over the functions that used to be performed by the Accident Compensation Commission?

MR RADFORD:  Oh, I beg your pardon, yes, that is correct.  We are now the regulator and workplace insurer in the one authority.

CHAIR:  Yes, well, I happened to chair the Accident Compensation Commission in Victoria from 1985 to 1989.  You have probably taken down my photo.  However, one of the things that I learnt was that getting injured workers or workers who are off on workers compensation through illness was an extraordinarily difficult and  
complex undertaking.  In those days, there was no Disability Discrimination Act.  There is now.  What is the difference between what you have just described which, as I understood it, was an affirmative obligation on employers to provide reasonable adjustments or adjustments for a worker that the authority is trying to get back to work --- what is the difference between that and the requirements of the DDA?

MR RADFORD:  I'm not expert in the Disability Discrimination Act or the requirements that --- from my understanding they are     the notion of reasonable adjustment is similar, and the steps that would be involved are similar.  Our role is to fund the provision of those services, and that is what we do.  We coordinate and fund the provision of the services to enable the safe return to work and the return to safe work of the injured worker.

CHAIR:  Isn't there a very close relationship between the requirements of the Disability Discrimination Act, which incorporate the concept of reasonable adjustments defined in a particular way --- isn't there a very close relationship between that and the employer's obligation to take somebody back to work and to provide the assistance that that person needs to resume employment and thus reduce the costs of workers compensation?

MR RADFORD:  I don't believe I'm in a position to answer that with any authority, Commissioner, because I'm not familiar with the detail of the disability discrimination legislation.  I'm sorry, I can take it on notice but I don't feel I'm adequately experienced to answer that now.

CHAIR:  Thank you.

Ms Weston, what's your position on that?

MS WESTON:  I also don't have expertise in the Disability Discrimination Act, but I would expect that there will be some --- if not --- a significant crossover between what you need to do to get a person back to work and a reasonable adjustment that may be required at a point in time for someone with a disability.

CHAIR:  Yes, I would have thought that too, and that's why I would have thought that the agencies would be intimately familiar with the requirements of the Disability Discrimination Act, if not the Convention on the Rights of Persons with a Disability.  Anyway, thank you very much for the answers.

Commissioner Galbally, do you have a question?

COMMISSIONER GALBALLY:  Just to follow up on that question, that it's really quite striking to me the difference in the effort that is put into workplaces once someone is injured and acquires a disability that way, compared with people who come with disability where their disability wasn't acquired that way.  And I'm interested in how, in the best of all worlds, Safe Work Australia for example would expand their remit to include that perspective, and Comcare and Victorian WorkSafe.

So, Safe Work Australia, how would you expand to include that?  Because already the mental health areas, psychosocial, you are dealing with; why not other disabilities?

MS BAXTER:  Predominantly, just using the example of psychosocial, the way that we categorise it here in Safe Work Australia is that that is a risk or a hazard rather than an attribute of someone.  So the approach in the model work health and safety laws is to eliminate, as far as possible, hazards that may be a risk to and health and safety.  It would be --- and something I have not thought about --- an interesting policy diversion, I think, for work health and safety laws to address the issue of focusing attention on a person who comes into a workplace with a disability, and I think there would be many considerations such as implications of privacy legislation, there may be implications in terms of the discrimination, the disability discrimination legislation.

It would certainly be something that we would need to undertake further exploration of in order to look at and address the anomaly that you've identified.


MS WESTON:  In the workers compensation area, as we've outlined, there has been     there are resources that are paid for by the Scheme, the Workers Compensation Scheme, to get a person back to health.  That relationship is different because, you know, the person has been injured in the workplace.  With the relationship of someone who is coming onboard - - that said, in my jurisdiction which as I've mentioned is Government Departments and agencies and some of the big national companies or organisations, there would be people in those organisations who do provide support and resources for someone coming into an organisation.  I don't regulate that or, you know, I am an employer who does that but, you know, that part, but I can see, my jurisdiction, people who do put resources into reasonable adjustments and settling a person with a disability into the organisation.


CHAIR:  Commissioner Ryan.

COMMISSIONER RYAN:  I don't have any questions.  Thank you.

CHAIR:  Sorry --- someone want to say something?

I will assume that there are no questions to be asked of the panel from legal representatives, in which case I thank the members of the panel from each of the organisations represented today for coming to the Commission to give evidence and for those who provided statements.  We thank you for the statements that have been provided.  We appreciate the assistance that you have given to the Royal Commission.  Thank you.


CHAIR:  Do we now take a break for 15 minutes?

MS EASTMAN:  I will do the tender at the end of the day, We're running a little behind time.  So if we can have a break of 10 minutes?

CHAIR:  We will make it 12 and resume at 3.35.

MS EASTMAN:  Thank you, Chair.

ADJOURNED    [3.22 PM]

RESUMED    [3.35 PM]

CHAIR:  Yes, Ms Dowsett.

MS DOWSETT:  Thank you, Chair.  For the final panel of this afternoon we will be continuing the theme of work health and safety.  This time we will be looking at it from the employer perspective through the evidence of witnesses from Australia Post and Lendlease.

CHAIR:  Now, I understand that there are some appearances to be announced, is that correct?

Is there an appearance for Lendlease?  Apparently not.  Is there an appearance for Australia Post?

MR WOODBURY:  From Ashurst lawyers, Woodbury, initial S, I appear on behalf of Ms Davies and Australia Post.

CHAIR:  Yes, thank you very much.

Thank you, Ms Dowsett.

MS DOWSETT:  Chair, I'm informed there was an appearance for Lendlease.  They were just ---

MS THEW:  May it please, Commissioner, we were still muted, I think.  Thew, T H E W, initial P, of counsel instructed by Herbert Smith Freehills for Lendlease.

CHAIR:  Yes, thank you very much, Ms Thew.  Yes.




MS DOWSETT:  Thank you.

If I can now introduce the witnesses, beginning with you, Ms Davies.  You are Susan Davies, Executive General Manager, People & Culture at Australia Post?

MS DAVIES:  Correct.

MS DOWSETT:  You have prepared a statement for this Royal Commission?

MS DAVIES:  That's correct.

MS DOWSETT:  It is an undated statement but it runs to some 17 pages and then a series of annexures?

MS DAVIES:  That's correct.

MS DOWSETT:  Are the contents of that statement true and correct?

MS DAVIES:  Yes, they are.

MS DOWSETT:  As Ms Eastman indicated in her opening on Monday, Australia Post's HR system records that it has 3.91 per cent of its employees are people who identify as a person with a disability.

MS DAVIES:  Yes.  If I can just update on that number, Counsel, please.  The number who have identified in the HR system is 1,464.  We have an additional 771 people who identified through the engagement survey, so the overall number is 2,235 which is a representation of 5.9.

MS DOWSETT:  So the 771 in the census, they are additional?

MS DAVIES:  That's correct.

MS DOWSETT:  Thank you.  Now, Australia Post's participation rate is higher than, or it's the highest of the private sector employers that we are hearing from in this  
week of hearings, and I was interested in what you thought might be the reason for that.  Is it attributable to Australia Post's origins in the Public Service, or is it because of something that you've done, some process or policy you've adopted since becoming a statutory authority or a government business enterprise?

MS DAVIES:  I think it's probably two parts, and I think it's both of those things.  I think that we've done a lot of work in the past four, five years around accessibility and inclusion and, as you can see in the submission, I think following on from the Willing to Work Report, we really took some serious actions around --- and again all detailed in the actual submission, but we've actually had an Accessibility and Inclusion Plan from 2015.

But I think in the past three, four years, we really focused on a lot of actions, you know, in the recruitment process, so things to improve the recruitment process, so to attract people into Australia Post and ---

MS DOWSETT:  Thank you, Ms Davies.  I will stop you there because we do have limited time.  One thing on your statistics, Australia Post doesn't have a target for participation rates for people with disability.  That's correct?

MS DAVIES:  That is correct.

MS DOWSETT:  Do you think you should?

MS DAVIES:  So up until last year we've had a target for disability, and I think that target has played a really important part, they have a role to play, dependent on what part of the journey you are on as an organisation.  And we felt that this year, for the first time, we removed that target and our focus is very much more around leadership and culture, a workplace that is very accepting of disability, and we really want to change the culture and the leadership rather than focus on targets.

MS DOWSETT:  Thank you.

Turning to you now, Ms Stewart, you are Melinda Stewart?

MS STEWART:  That's correct.

MS DOWSETT:  You are the Acting Chief People Officer Australia and the Group Head of People Connect at Lendlease?

MS STEWART:  Yes, that's correct.

MS DOWSETT:  You made a statement for the Royal Commission dated 3 November 2021?


MS DOWSETT:  In that statement you referred to and adopted an earlier statement of Ms Meaghan Davis dated 15 June 2021?


MS DOWSETT:  Taken together, are those statements true and correct?

MS STEWART:  Yes, they are.

MS DOWSETT:  As to Lendlease's participation rate, as at 1 November 2021 your HR system recorded 8 employees?

MS STEWART:  That is correct, of the employees who self disclosed where they have a disability.

MS DOWSETT:  In the HR system?

MS STEWART:  In the HR system, that is correct.

MS DOWSETT:  That equates to 1.7 per cent of your workforce?

MS STEWART:  That is correct, of the people who chose to self disclose in the HR system, yes.

MS DOWSETT:  You also conduct a bi annual survey of your employees?

MS STEWART:  Yes, we completed a survey in May that is referenced in our submission where we had 38 employees disclose that they had a disability, which equated to 1.26 per cent of our employee participation, and our most recent survey data that we didn't have at the time of our submission, on 3 November, we had 48 employees who disclosed that they have a disability representing 1.63 per cent of those who participated in the people survey.

MS DOWSETT:  You say in your statement that you don't have a target for the employment of people with disabilities, but Lendlease is instead focused on removing barriers to employment?


MS DOWSETT:  Based upon your participation numbers, that approach doesn't appear to be working.  Do you accept that Lendlease could and should do more in this area?

MS STEWART:  Lendlease actually does quite significant work to support all of our employees in the workforce.  Whether they choose to disclose is purely at their discretion.  But we do not require it as a mandatory component of reporting.  And in fact I have a very fantastic example of a gentleman who recently competed in the  
Tokyo Paralympics, and he is a member of the employee     a member of staff at Lendlease.  And he has not actually self disclosed in our HR system that he has a disability, but he actively participates in conversations about his disability and representation for Australia.  So I would say that although the reporting rate perhaps is low, we understand that more people with disabilities no doubt work for Lendlease, but trying to remove the barriers is what we're focusing on, as opposed to setting targets for people with disabilities in our employment.

MS DOWSETT:  I understand that there's a difference between reporting in the HR system and anonymous disclosure through Censuses and surveys.  Do you have reason to believe that Lendlease's number is in fact higher than the 48 per cent anonymously disclosed in     48 people anonymously disclosed in your most recent survey?

MS STEWART:  I don't have any hard facts or data that would suggest that that is the case.  I could only rely on information, I guess, that's publicly available for broad participation in the public.  But all I can rely on is the data that we have reported at this time.

MS DOWSETT:  Thank you.  Moving now to the focus of this afternoon's panel which, as I said by way of introduction, is work health and safety.

If I could invite you, Ms Stewart, to tell the Royal Commission about Lendlease's     how you think about culture and safety in terms of your workforce generally, and if there's a difference, then in terms of your employees with disability?

MS STEWART:  Health and safety is a guiding principle of Lendlease.  We have four, so customer focus, diversity inclusion, health and safety, and sustainability.  So safety is of paramount focus.  We know our people can go to work and there is a very real risk in some instances that they could be harmed.  So our biggest focus is to ensure that everybody gets to return home safely each day from work.

We certainly do not have any indication or reporting that people with disabilities are treated any differently, and in fact we very much focus on a diverse and inclusive workplace for all.  Work health and safety is, as I have said, a significantly important component of what we do each and every day, and this is evidenced through what we refer to as our "global minimum requirements", which is a minimum requirement for environment and health and safety for all of our projects and assets to operate to globally, not just here in Australia.  And that starts right from the bid phase of a project, right through the delivery phase, and they are very prescriptive around how to mitigate risk and controls in the organisation and the delivery of a project, and there is absolutely no differentiation for how that applies to employees with or without disability.

MS DOWSETT:  What steps does Lendlease take to ensure that it meets its primary duty of care in respect of employees with disability?

MS STEWART:  Our employees, I guess, if they choose to disclose that they have a disability and require accessibility adjustments in the workplace, then we will accommodate those through our Workplace Support Program.  We have an in house team of injury care and recovery managers, a team of four, who will work very closely with those that --- should they require adjustments.

And the same team also works with any employees who sustain work related or non work related injuries or illnesses in how they are able to be accommodated to perform their work or return to work.

This team, along with our environment and health and safety team, also ensure full compliance with all work health and safety regulations and obligations.

MS DOWSETT:  Thank you.

Returning to you now, Ms Davies, could you please explain to the Royal Commission how Australia Post thinks about its culture of safety and risk?

MS DAVIES:  Australia Post, it's actually one of Australia Post's core values and so safety is at the heart of everything we do.  We believe that safety starts at the top.  We believe that you need to walk the walk, and so it is a very significant thing that we focus on at board level, at executive level.  We have a clear straight safety strategy, but a big part of that strategy is mental health focuses as well, which is psychological injury and physical injury, both equally as important.

We have clear policies.  We operate under the Commonwealth SRCC, under the Commonwealth Comcare legislation, so as well as our obligations around State and Federal legislation, we are very heavily audited and linked with Comcare in the expectations and regulations.

But I think, more than anything, we are very clear on what we expect from our leaders in keeping a safe workplace and keeping our people safe.  And we've got clear roles and regulations, rules and regulations around what we expect from all our employees as well.  So we expect that people will come to work in the morning, and that they will go home in the same state that they came to work.  That's really important to us, so we have a very, very clear vision and strategy of our expectations.

MS DOWSETT:  To what extent is the strict liability that exists in workplace health and safety legislation a motivating factor in the development of that culture you've described?

MS DAVIES:  It's essential.  I think ---

MS DOWSETT:  Excuse me, if I can interrupt there.  By "essential", does that mean you have developed your policy, your culture specifically in response to the strict liability?

MS DAVIES:  No, quite the opposite.  So we believe that if we     for keeping our employees safe, it's a basic requirement for us.  We don't do that because it's a legal obligation that we have to do.  We obviously comply with all our legal obligations but, you know, what is our core value is that --- we've got four core values, trust, inclusivity and empowerment and safety, not in any specific order, but if you're willing to keep people safe, then you will build on trust.  And if you build on trust, then you build a good culture in an organisation.  And I think over the years, we've managed to build that trust in an organisation.  We've gone through transformation, we've been around for 216 years.  We've got people that have been around, it's very normal in our organisation to see a tenure of 20, 30, 40 years.  So I think you've got to continuously revisit and, you know, everyday safety and have it absolutely underpin everything that you do.

MS DOWSETT:  I don't know if either of you have been following the evidence of the Royal Commission, but one of the themes that we’re hearing in the evidence is this question of a perception of risk, that employees or people with disability are perceived to pose a greater risk in the workplace.  And what I want to ask you both, but I will begin with you, Ms Stewart, is how you go about identifying and measuring risk in the workplace; what do you look to, to identify your risks?

MS STEWART:  As I outlined, the global minimum requirements that Lendlease has really, I guess, help to govern and guide how we identify risks and implement control.  So that's a very broad program that has been in place for many years, has recently been updated.  We conduct regular training for all of our employees, mandatory training for compliance with the global minimum requirements.

And before each job or task is undertaken, especially in more high risk areas, there is an assessment of the work to be performed and an assessment of the risks and the controls that need to be put in to mitigate those risks.  It's very clearly outlined in our documentation.

MS DOWSETT:  Do you have a process for reporting accidents, injuries and near misses?

MS STEWART:  Yes, we do.  We have a very robust process through our Environment, Health and Safety team.  We record incidents in a system called Enablium, and those safety statistics are regularly reviewed and reported up to our senior leadership teams, and we also disclose information through our annual reports.

MS DOWSETT:  In that reporting process, is it a requirement to identify contributing or potential contributing factors?

MS STEWART:  Should there be a safety incident or a near miss and there is an investigation that is completed with the Environment Health and Safety team in the first instance in conjunction with the business, absolutely, there will be --- understanding what are the factors that have contributed, what are the causes, to determine especially what can be done to prevent further injuries and incidents from  
happening again.

MS DOWSETT:  And is it the case that if there was an accident or a near miss, and one of these investigations was completed and it was thought that a particular factor contributed, it would be captured and then that would be analysed?

MS STEWART:  Yes, that is correct.

MS DOWSETT:  And so from your own data, what can you tell the Royal Commission about whether, if at all, and if so, how much, employees with disabilities feature in these accident and near miss reports?

MS STEWART:  Ms Dowsett, we don't actually record the disability status of a worker involved in an incident or a near miss.  And in fact I just confirmed this earlier today, we do not record or even ask that in the line of investigation, as to whether the person has a disability.

MS DOWSETT:  Can we draw from that, that's because it's Lendlease's view that that would never be a relevant factor?

MS STEWART:  Yes, that is correct.

MS DOWSETT:  Thank you.  If I can turn to you, Ms Davies, and ask that same question, beginning with what does Australia Post do to identify and measure risk?

MS DAVIES:  So, there are two levels of risk.  So obviously critical risk within the workplace is an absolute focus for us, and I think, like every workplace, we have risk and I think, you know, that is again a major part of our overall safety strategy.  We have a safety index, so as part of that safety index we report on a weekly basis we report things like near misses and safety walks and lots of things within that index.  We have a Safety Council of which two board members and the Chairman sit on, and we hold that Council on a regular basis, and these are the numbers that we look at at Board level.  We also report in the Board on these things.

Individual risk, as we bring that down to every employee --- so we've got workplace risk, we've got individual risk --- so every employee that joins Australia Post, we do individual risk assessments, so everyone who joins the organisation would go through a medical.  We do risk assessment of roles and, you know, for example, one of the core roles in Australia Post is the postman's role, and, you know, there's risks out there every day with motorbikes and dog bites, and so we do a lot of things around risk assessment of roles, and obviously the assessment for the capability of someone to do that role.

MS DOWSETT:  Could you just explain to the Royal Commission why that medical assessment is necessary for every employee coming into Australia Post?

MS DAVIES:  Of course.  So every role     we've got lots of different roles.  We are  
obviously very much a frontline organisation, so the bulk of our employees sit within that frontline area.  So, again I will use an example of a postie role, you know, one of the key things there is that we would expect that first of all, they had a motorbike licence.  That's an inherent requirement of the role.  You know, but we've got weight restrictions on motorbikes.  You know, somebody who is at 100 kilos can't ride a motorbike because that's not safe to do so.  So that's the reason.  Again, we just want people to be safe and we have things like lifting restrictions.  So, you know, if you are coming into one of our facilities, then you have to be lifting small parcels and packets, we need to be able to make sure that ergonomically, people can bend and lift properly, and they can actually lift to 16 kilos.

So throughout that whole process, if you were new in the organisation coming through the recruitment process, you can either flag in the recruitment stages --- three stages in recruitment.  You can actually flag that you have a disability or you need an adjustment, a reasonable adjustment within the actual recruitment process, or that you need an actual workplace adjustment once you're actually in the role.  So you could have someone flagging that before they go into the role, during the process, or actually when they are in the role as well.  So it's an important thing to us.

MS DOWSETT:  So that's the flagging of an adjustment, and perhaps the person says "I have a lifting restriction" or "I can't ride a motorbike".  I am not sure how that links to the need for a medical assessment.  Surely some of your postal delivery people are walking people or they drive cars rather than motorbikes.  I don't understand how --- that’s the explanation for why everybody has to have a medical assessment.

MS DAVIES:  I think it goes back to everyone being safe within our workplace.  At the end of the day we want people to, as I say, go home in the same condition as they come to work.  And it's really important, even with a postie who is on a walking round, for example, that they cover some fair kilometres in a day, so we need to make sure that people are able to do the role that they are actually applying for.  You know, someone who is applying for a long haul driver's role, again, we need to make sure that they are fit and able to do that.  And, of course, if there is anything raised in the process, then at any stage in that process, then we do look for either workplace adjustments or if somebody comes in and says "I really want to be a postie and I want to drive a motorbike, I've got a licence but maybe I have a weight restriction or a weight issue", we would look for alternative employment in that process, and we would actually support that person to achieve the ultimate goal that they wanted to be in.

But, you know, going back to your original question, we want to make sure that, you know, everyone who comes into the organisation, that they are able to     we can put them in a safe environment and they can operate in a safe environment.

MS DOWSETT:  So are you putting the onus, as Australia Post, on the person to fit safely into your framework rather than finding a way for Australia Post to safely accommodate them?

MS DAVIES:  I think it's the latter, not the former.  We do expect that, you know, there are certain requirements for certain roles.  You know, that's quite straightforward.  You know, you can't     if you can't lift, you know, you can't lift up to 16 kilos, then it would be extremely irresponsible of us to put people into roles where we know people have to lift up to 16 kilos each day.

MS DOWSETT:  Can't you ask them that?  Do you need to send them to a medical assessment for that?

MS DAVIES:  I think, look, we ask people in the process and, you know, people will tell us honestly     not everyone discloses within the process.  You know, a lot of people do disclose in the process, and that's the culture that we want everyone to experience, but not everyone will declare in that process whether they do have a longstanding injury or, you know, they've got any injuries.  So, you know, I think it's not a safeguard for the organisation, it's more the employee, we want to make sure that that individual is able to, one, do the role, and again let me use a different example.  We have a lot of drivers in our business so, you know, we see a lot of drivers coming into our business where, you know, they are pulling curtain sliders back for 20, 30 years then, you know, they are suffering from shoulder issues, shoulder reconstructions.  So these are a lot of the things we deal with.  It's not to say that we don't employ people, we do absolutely employ people.  But we would rather recognise the adjustment requirement up front than have someone come into our workplace and injure themselves and then we are talking about rehabilitating someone in the workplace or worse.  So we take it really seriously.

MS DOWSETT:  You have addressed in your statement employment adjustments which I think you've just been touching on.  And you do it by contrasting work related injuries and non work-related injuries.  Is it fair to say that Australia Post takes a different approach depending upon the source of the injury?

MS DAVIES:  Not in the workplace adjustment.  Obviously a workplace injury, a work related injury is subject to, as I mentioned earlier on, the Commonwealth Comcare legislation, and we are obviously part of that.  So, you know, we are a big organisation with 37,000 employees, so we have a team of people who deal with the whole start to end of any workplace injury, so that is from --- that's early intervention, it's rehab, it's the process of the workers comp claim, through to the completion.  One of the key things we focus on is returning people back to work as soon as we possibly can.

If it's a non work-related injury then that would come through in different ways.  It's not that we deal with people in helping people get back to work with the restrictions, it's more around the way that would actually come through to us, so again let's use an example ---

MS DOWSETT:  I will cut you off there, we have very tight time and there are a few ---

MS DAVIES:  I understand.

MS DOWSETT:  --- specific issues I want to come to.  Do you have your statement in front of you?


MS DOWSETT:  If you could turn to page 7, this is where you begin with your workplace adjustments and about halfway down the page there is a heading that says "Employees", and then you refer to an employee who presents with workplace restrictions due to a non work related medical condition.


MS DOWSETT:  Do you see that?


MS DOWSETT:  Then you go on to say:

Local management will review the determination and see whether this request can be taken into consideration regarding the safety of the employee.


MS DOWSETT:  Am I correct in understanding that that, in broad brush, is how Australia Post responds to non work-related injuries?  Somebody comes in with their restrictions, and it's down to local management to consider accommodating those restrictions, having regard to safety?

MS DAVIES:  Not always.  That may be one way.  The relationship of employees is very much at a local level, so an employee may come in and speak with a local manager.  But we also have a central team of people, my HR, where people will come to as well and say, you know --- it's not always an injury.  Sometimes it's someone, somebody who has been with us 20 years.  It's not that they came in with an injury or an illness that is now classed as a disability, but, you know, we've had a number of people where, for example, they've got MS.  And so they will have a local conversation with the manager.  The manager will then generally raise that at a central level, or it will come direct to a central level, and we will look for reasonable adjustments in the workplace for that individual, and we will make sure that we can accommodate that individual.  And the size of our organisation generally lets us always, you know, support workplace adjustments in those situations.

So we don't deal with people differently in the outcome, but obviously if it's an injury at work, we are dealing with that way upfront when the injury happens.

MS DOWSETT:  Still on that page, there is a heading right at the bottom of the page "Injuries sustained whilst at work".  And so then the discussion goes over on to page 8   


MS DOWSETT:  --- and in the third full paragraph, it begins "Common employment adjustments include", do you see that?


MS DOWSETT:  So you're talking there, if I'm correct, about employment adjustments that are made for people who have sustained workplace injuries, so these are people covered by the Safety Rehabilitation and Compensation Act Scheme that you have been talking about?

MS DAVIES:  It relates to in that specific context, but we also do that for people who are non work related injuries who come in and say "I need to     I've injured myself playing football on the weekend and I now can't lift for the next four weeks, can you help me, support me through the next four weeks?"  So there is temporary injuries, there is more permanent things like the previous example I used.  But we don't differentiate in how we support people getting back to work.

MS DOWSETT:  The next heading on that page, under the paragraph I just directed your attention to, is "Injuries sustained outside work".


MS DOWSETT:  You tell us that those injuries are dealt with within guidelines of Australia Post's non work related medical restrictions, policies and procedures?


MS DOWSETT:  Am I correct in understanding there are two sets of policies, one that relates to compensable injuries, workplace injuries, and one that relates to non compensable injuries, whether it's a short term, a temporary condition or a long term, a disability.  Those are the two options:  it's work related or it's non work-related.

MS DAVIES:  They are quite separate, yes.

MS DOWSETT:  Is it your evidence to this Commission that while there are two sets of policies, the way you treat those employees is the same?

MS DAVIES:  Absolutely.

MS DOWSETT:  So in relation to work related injuries, you've reported that 95 per  
cent of case closures, Australia Post recorded as attaining pre injury hours and duties.  So that's somebody who has gotten completely back to work?


MS DOWSETT:  In the remaining 5 per cent is the person on a permanently modified role?


MS DOWSETT:  In relation to injuries sustained outside work, as I understand it from those two paragraphs at the bottom of page 8, you are saying that in the financial year 2018 to 2019, 26 per cent of employees who were injured outside of work and in the following year 20 per cent were able to be accommodated within their medical restrictions?


MS DOWSETT:  And so that accommodation that you're talking about, is that that same thing we see in that paragraph "Common Employment Adjustments", that's the same kinds of things people were needing?

MS DAVIES:  I think with the injuries sustained outside of the workplace we wouldn't have all of the details that we would have on people with injuries sustained within the workplace.  So if it's a workplace injury, like say we are with that individual from the point of that injury and we manage the process from start to finish, I think injuries outside of work, while we do have rehab providers on site, we have exercise physiologists, we have lots of support but we don't have the level of detail in the actual injuries.

MS DOWSETT:  You could ask the employee when they come in and say, "I need a request for a workplace adjustment", you could ask them for the supporting information you need, couldn't you?

MS DAVIES:  And we would do that.  And we would ask again if someone was injured, whether it was in work or not, as part of that return to work process we would generally ask for a doctor's clearance to say this person is able to do this work again.  That's really important, whether that's in whichever policy it's in.  And then if this person can return to work with certain restrictions, then again whether it's inside or outside of work, the injury, we actually look for alternative work or we look for work with restrictions.

MS DOWSETT:  Thank you.  Just one more point on your statement.  On page 9 you are talking here about adjustments that have not been provided and the discussion all appears under the heading of "Injuries Sustained Outside the Workplace".  Am I then to understand from this evidence that where the injury is sustained within the workplace, where it's compensable, adjustments are always provided?

MS DAVIES:  I don't think, and again to the best of my knowledge, I don't believe and I don't have the data on the non work-related that I do on the work-related, it is certainly my understanding, and again there will be a lot that's done locally to support people.  But certainly our approach is to provide every employee with the level of support and the opportunity to return to work as soon as possible because we fully understand that, you know, primary injuries can soon result in second psychological injuries and that is something we are extremely focused on.  So whether someone was injured inside of work or outside of work, our primary focus is to help them get back to work as soon as possible.

MS DOWSETT:  So is it accurate then to say that from Australia Post's perspective there is no practical difference between the obligation under the Disability Discrimination Act to make reasonable adjustments and the obligation under the SRC Act to take reasonable steps to provide suitable employment to an injured employee?

MS DAVIES:  They are obviously two different Acts but the principle that the organisation is absolutely, as I've just said, that our focus is to return that person to work as soon as is possible.

MS DOWSETT:  That's why I asked you about it from a practical perspective.  I appreciate they are different pieces of legislation with different test but I'm talking about in practice, on the ground, is that what you are telling the Royal Commission?  Have I understood your evidence correctly?

MS DAVIES:  I believe that we absolutely would not treat people any differently whether it's a workplace injury or not.  It's different legislation and a different process and we certainly have more detailed reporting around the workplace injuries but, no, as a principle I would absolutely say that Australia Post focus is always to return that person back to work.

MS DOWSETT:  Thank you, Ms Davies.  If I can turn to you now, Ms Stewart.  In your statement you have described Lendlease's workplace support program.  And in the detail of that program that you've provided, it says, and this is a message from Lendlease to its employees:

If you require support to return to work or remain at work safely and productively ---

Then they access that support through the workplace support program.  Your statement and that information doesn't distinguish between workplace injuries and other needs for support, whether it's illness or injury or a long term disability.  Am I correct in understanding that from Lendlease's perspective there is no difference in practice in the support you provide?

MS STEWART:  That is correct, Ms Dowsett.  Our workplace support program and the Injury, Care and Recovery team will support employees that sustain both work  
and non work-related injuries and illnesses.  And other than some of the formal documentation that would need to be completed for workers compensation claims, the practical application is the same for work and non work-related injuries.

MS DOWSETT:  And so again you've already answered I think, but just to be clear, in your practical approach for Lendlease, you see no difference between the concept of a reasonable adjustment under disability discrimination and providing suitable employment under workers compensation legislation?  You do the same thing to get the person back to work?

MS STEWART:  That is correct.

MS DOWSETT:  Thank you.  Just one moment.  I have no further questions.  Thank you, Commissioners.


CHAIR:  Commissioner Galbally, do you have any questions?

COMMISSIONER GALBALLY:  First of all, Ms Davies, congratulations on the highest percentage, but also, in coming down a little from 6.3 to 5.7, do you have strategies in place to keep going up, which is I'm sure where want to head?

MS DAVIES:  We do, Commissioner.  And I think the one thing that will change perception of disability in the workplace in our view is that people see ability and not disability.  And that starts at the top of an organisation and it goes right the way through an organisation in the culture and the leadership.  And we talk about quotas, we talk about targets and I will feel that we've succeeded as an organisation when that number is up at 10, 18, 20 per cent and we've done that without focusing on a number.  We've done that because people see the ability and not disability.  And I think we are on that journey and the decision that was made this year to move away from a target was all around that.

COMMISSIONER GALBALLY:  But you will still be tracking it closely?

MS DAVIES:  We will track.  We will be tracking it very closely.

COMMISSIONER GALBALLY:  And just to come to the topic of the difference in workplaces for injured workers in the workplace compared with people injured outside the workplace or indeed disabled, so 26 per cent were able to be accommodated if they were injured outside the workplace compared with 90 per cent if they were injured inside the workplace or am I misunderstanding that comparison?

MS DAVIES:  I think, Commissioner, it's more around what you've got     we absolutely have a complete record of the workplace injuries so we track every single  
individual.  I think there would be a lot of local agreements out in the facilities and, as you know, we have hundreds of facilities.  We have thousands of post offices and, you know, so I think every day in our workplace there are adjustments being made for individuals short term, longer term.  But what I can say is that the principle is absolutely the same in that we believe people are better at work.

COMMISSIONER GALBALLY:  Thank you.  Ms Stewart, that was your answer too about the difference between the two groups?

MS STEWART:  So we do not differentiate for the workplace adjustments or the reporting or statistics.  We absolutely want to ensure that we remove any barriers and accommodate adjustments for all of our workers whether they are injured at work or outside.


CHAIR:  Thank you.  Commissioner Ryan.

COMMISSIONER RYAN:  Both of you said that you decided to step away from targets.  In the case of Lendlease it was to focus on reducing barriers and in the case of Australia Post it was to focus on leadership and culture.  Isn't that just a little bit like deciding not to measure profit and loss but focus on efficiency and marketing?  I mean some people would find that a bit difficult that you would not be planning to measure and target to reach a particular direction and work out whether you had succeeded or failed?  And that's usually the purpose of a target.  Why is some focusing on reducing barriers and leadership and targeting, leadership and culture, why is that mutually exclusive of having a target?

MS STEWART:  Commissioner, at Lendlease at this stage we are I guess still on a journey as part of our diversity and inclusion plan.  We have a number of strategic initiatives that we are intending to implement and pursue over the coming years.  Workers identify with a disability as part of their employment has not been a particular strategy that we have undertaken at this time.  We absolutely want to be able to create the workplaces.  We build workplaces every day for our clients, for ourselves.

We did win an award a number of years ago now, 2016 for guidelines that we developed in conjunction with the Australian Network on Disability and Westpac for Designing with Dignity.  We want to make sure that the workplaces that we build and the workplaces that we operate in can accommodate all people regardless of their ability or disability.  So we don't believe that we need to have targets if we are actually doing more around design that is well beyond compliance to provide a very inclusive workplace.

COMMISSIONER RYAN:  But the barriers for people with disability working are greater than environmental.  There is attitudinal and structural and other things.  Surely a target helps you measure or not whether you are succeeding at those?

MS STEWART:  Commissioner, we do record completion of mandatory training in both environment health and safety, diversity and inclusion training.  So we absolutely report those statistics internally and we have trained 512 of our people to be mental health first aid trained.  We have trained 424 of our leaders in Australia, which is 26 per cent of our leaders, to be mental health first aid aware as well.  We have a range of initiatives and wellbeing programs that we roll out to provide more training and awareness for our people again to support all of their workers, again without needing to have targets at this time.

CHAIR:  Thank you.  Ms Davies do you want to respond to the initial question, perhaps very briefly considering the time?

MS DAVIES:  I will, Commissioner.  You know, we will always measure this number.  I think the point is we don't want to focus on a number.  What we want to do is focus on the culture and the measure of success will be in a number but it will be more when people see ability and not disability and we see the absolute advantage of people in the workforce.

CHAIR:  Thank you.  I assume that there are no questions from any of the legally represented parties?

On that assumption I thank both Ms Stewart and Ms Davies for coming to the Royal Commission to give evidence, for your statements and the oral evidence you've given today.  As with all the other witnesses who have appeared this week, we very much appreciate your assistance on the important issues that we have to examine.  Thank you very much.


CHAIR:  Ms Dowsett, you want to tender some documents I assume?

MS DOWSETT:  I do, Chair.  You have been passed the three pages of the list.

We will begin with Safe Work Australia.  The statement of Michelle Baxter dated 3 September 2021, we propose be marked Exhibit 19 24, together with annexures 19 24.1 through to 19 24.3.

From WorkSafe Victoria, the statement of Colin Radford dated 27 October 2021, 19 25 with annexures 19 25.1 through to 19 25.3.

The statement of Susan Weston dated 3 September 2021, 19 26 with annexures 19 26.1 through to 19 26.3.

The statement of Natalie Bekis dated 3 September 2021, 19 27 with annexures  
19 27.1 through to 19 27.8.

The statement of Meaghan Davis dated 15 June 2021 will be 19 28 with annexures 19 28.1 through to 19 28.5.

The statement of Melinda Stewart dated 3 November 2021 will be 19 29.

Finally, the statement of Susan Davies, undated, will be Exhibit 19 30 with annexure 19 30.1.

CHAIR:  Yes, thank you.  All those documents will be admitted into evidence and given the exhibit numbers to which Ms Dowsett has referred, and I have initialled and dated the document that records those documents being admitted into evidence.









JUNE 2021





CHAIR:  Could we very briefly indicate what is to happen tomorrow?

MS DOWSETT:  Thank you, Chair.  Tomorrow we will be beginning with panel from the Public Service Commissioners which will take up the morning divided into two sessions but they will be take you through to lunchtime.  Then after the luncheon adjournment there will be a panel on building inclusive workplace culture followed by a panel on legal safeguards addressing discrimination.

CHAIR:  Thank you very much.  All right, we will adjourn until 10.00 am Eastern Summer Time tomorrow.