Public hearing 19: Measures taken by employers and regulators to respond to the systemic barriers to open employment for people with disability, Virtual - Day 4
CHAIR: Good morning to everybody who is following these proceedings. This is the fourth day of Public hearing 19 of the Royal Commission addressing 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 Eastman.
MS EASTMAN: Good morning, Commissioners, and good morning to everyone following the proceeding. The panel this morning will be a panel of Public Service Commissioners representing the Australian Government, the Victorian Government and the Northern Territory Government. There's a lot that we need to get through and I will do my best, Commissioners, to ensure that I will make the material we need to address as accessible as possible, but hopefully you won't need to turn to a lot of documents.
Can I just check that we have our witnesses. We can see Mr Woolcott there. Mr Fennessy. I'm hoping Ms Telfer will appear momentarily. Good morning to you all. Thank you for joining the Royal Commission.
CHAIR: Good morning, and I echo Senior Counsel's welcome to the Royal Commission. Thank you very much for coming to give evidence and thank you very much for the statements that have been provided so far. Let me explain where everybody is. Commissioner Galbally is joining the hearing from Melbourne. I am in the Sydney hearing room together with Commissioner Ryan on my right. Senior Counsel Ms Eastman is also in the Sydney hearing room and I will ask Ms Eastman now to ask you some questions. Thank you very much.
MR PETER WOOLCOTT, CALLED
MR ADAM FENNESSY, CALLED
MS VICKI TELFER, CALLED
EXAMINATION BY MS EASTMAN
MS EASTMAN: Mr Woolcott, can I start with you. You are Richard Woolcott AO? And I will have to ask you, it's the Zoom thing, but off mute. I think you're fine now.
MR WOOLCOTT: Is that okay?
MS EASTMAN: That's better. I can hear you now.
MR WOOLCOTT: The answer is yes.
MS EASTMAN: So far so good. All right. You're the Australian Public Service Commissioner?
MR WOOLCOTT: I am.
MS EASTMAN: You've made a statement dated 11 June this year?
MR WOOLCOTT: Correct.
MS EASTMAN: And a corrigendum, so corrections on, you know, a document provided in October this year; is that right, 10 October?
MR WOOLCOTT: Also correct.
MS EASTMAN: You've had a chance to read those statements before this morning?
MR WOOLCOTT: I have.
MS EASTMAN: Are there any corrections?
MR WOOLCOTT: No.
MS EASTMAN: Are the contents true and correct?
MR WOOLCOTT: Yes.
MS EASTMAN: Just before I introduce the other members of the panel, your role as the APS Commissioner is defined by the Public Service Act 1999, a piece of Commonwealth legislation, and that's sets out your particular functions and responsibilities; is that right?
MR WOOLCOTT: That is correct. With one addition, I also have policy responsibilities in relation to workplace relations. But that's not there.
MS EASTMAN: And I think section 41 of the Act says that one of your functions is to monitor, review and report on APS, so the Australian Public Service, capabilities within and between agencies and to promote high standards of accountability,
effectiveness and performance?
MR WOOLCOTT: Correct.
MS EASTMAN: Mr Fennessy, can I turn to you. You are Adam Fennessy PSM?
MR FENNESSY: Correct.
MS EASTMAN: You are the Victorian Public Sector Commissioner?
MR FENNESSY: Yes.
MS EASTMAN: You have made a statement dated 14 July this year?
MR FENNESSY: Correct.
MS EASTMAN: Have you had a chance to read the statement?
MR FENNESSY: I have.
MS EASTMAN: Any corrections?
MR FENNESSY: No corrections.
MS EASTMAN: Are its contents true and correct?
MR FENNESSY: They are.
MS EASTMAN: Your role is to have oversight of the Victorian public sector departments and your functions are set out in the Public Administration Act 2004 of Victoria, and that gives you a range of responsibilities in terms of oversight of policies and also public sector values, developments of code of conduct and the like for the Victorian public sector. Is that a broad description?
MR FENNESSY: Yes, that is correct, Counsel.
MS EASTMAN: Thank you. Now, next is Ms Telfer.
Chair, I think there is an appearance on of Ms Telfer and the Northern Territory.
CHAIR: Yes. If there is an appearance to be announced, please do that now.
MS EASTMAN: I think Ms Chalmers SC.
CHAIR: We can see Ms Chalmers on the screen.
I think you are on mute, Ms Chalmers.
MS CHALMERS: Can the Commissioners hear me now?
CHAIR: We can now. Thank you. Yes.
MS CHALMERS: If it please the Commission, I appear for the Northern Territory.
CHAIR: Thank you, Ms Chalmers. I assume there is no additional appearance to be announced today. If not, Ms Eastman will continue.
MS EASTMAN: Thank you.
Ms Telfer, you are Vicki Telfer?
MS TELFER: That's correct, Ms Eastman.
MS EASTMAN: You are the Commissioner for Employment for the Northern Territory Public Sector?
MS TELFER: That's correct.
MS EASTMAN: You have made a statement dated 22 June this year?
MS TELFER: Yes, that's correct.
MS EASTMAN: Have you read your statement?
MS TELFER: Yes, I have.
MS EASTMAN: Now, I think you have provided to the Royal Commission a corrigendum with some corrections and this morning you wanted to make a correction to paragraph 5.11, is that right?
MS TELFER: 5.1.
MS EASTMAN: 5.1, sorry, that's my writing.
MS TELFER: Yes.
MS EASTMAN: You wanted to change a date, is that right?
MS TELFER: Yes. So in the third line, "March 2016" should be "March 2017".
MS EASTMAN: With those corrections, are the contents of the statement true and correct?
MS TELFER: Yes, they are.
MS EASTMAN: In terms of your role as the Commissioner in the Northern Territory, the key functions and responsibilities of your role include employee and industrial relations, workforce planning and development, Aboriginal employment and career development, public sector appeals and grievances reviews. Is that generally the areas over which you have responsibility?
MS TELFER: That's correct, Ms Eastman. I'm the employer for all legal purposes, and I also set the strategic direction for the public sector human relations.
MS EASTMAN: Thank you. Collectively, I will call you all Commissioners, which may be a bit confusing with the three Commissioners I've also got here. I have about 14 topics that I want to try to get through today. We will see how we go, but I want to start with the question of representation and the level of the people with disability in the public sector.
I said in opening on Monday that in terms of the percentages based on what are recorded in the human resources systems of each of your sectors, that the Australian Public Service was at 4 per cent of employees being people who identify with disability. The Northern Territory was at 1.2 per cent, and the Victorian public sector at 0.4 per cent. And, Mr Fennessy, I noted some of the reservations around the way in which those numbers have been calculated.
Mr Woolcott, can I start with you. In terms of the percentage of employees with disability in the Australian Public Service, what can you tell us with respect to what that 4 per cent represents?
MR WOOLCOTT: That 4 per cent is taken from a resources data which we receive from all agencies every month and we collect that on a bi annual basis. So the 4 per cent refers to the figure at 31 December 2020. We've got later data which I think we provided you recently in relation to 30 June 2021, we have gone up to 4.1 per cent, a minor move ---
MS EASTMAN: Can I just ask you to slow down a bit so that everyone can follow you, and our Auslan interpreters can keep up with us too. Thank you.
MR WOOLCOTT: My apologies, Counsel. Our latest human resources data is at 4.1 per cent. That had to be shared by employees with their human resource teams when they arrive. So in terms of its accuracy, we are not able to vouch for it. People, for various reasons, and I'm very happy to discuss what they might be, may not ---
MS EASTMAN: Just to jump in there, I am going to ask you, probably what you may anticipate is, you have some other data from an employee census which is a different number. So I will come to that. But in terms of the 4 per cent, can I ask you, what does that represent across the APS? That's a collective number, is it not? --- (overspeaking) --- the Service?
MR WOOLCOTT: Yes, Counsel, that is an aggregate number.
MS EASTMAN: And you are able, from the data available, to break that up by reference to particular levels of classifications within the APS?
MR WOOLCOTT: Yes.
MS EASTMAN: Am I right in understanding that when we look at that 4 per cent, it's not 4 per cent universally across the board in every relevant classification or category of employment; is that right?
MR WOOLCOTT: No, that is correct. If you want to break it up in terms of our Senior Executive Service within the public service, that is at 3.7 per cent. If you want to break it up to our Executive Level service of people with disability, that's at 3.1 per cent. And if you want break it up to a portion of APS (inaudible) with disability, that's at 4.5 per cent. So my understanding is slightly under 40 per cent of people with disability in the public service are at the junior levels of 1 to 4.
MS EASTMAN: Looking at the data that you've provided, you are able to also identify by relevant department and agency what those percentages are; is that right?
MR WOOLCOTT: Correct.
MS EASTMAN: You may be aware that we heard from a panel representing DSS, the Australian Taxation Office and the NDIA yesterday, and they had in some cases quite what seemed to be quite high levels across these percentages in, for example, the NDIA. So it's the case, isn't it, again, if we take that 4 per cent, that's not going to be universal depending on the particular agency or department; is that right?
MR WOOLCOTT: That's right. That's right, Counsel.
MS EASTMAN: Without identifying any particular agency or department, it is the case, isn't it, that there are some agencies within the Commonwealth that have no people identifying as people with disability in the HR system?
MR WOOLCOTT: I would imagine. I don't have that data in front of me, Counsel, but I would imagine that they would be very small agencies.
MS EASTMAN: Yes, I think that's not an unfair comment to make, but I think there's one that has very few people. Then in terms of another data source, I think you started to touch on this, is that the APS undertakes what's called an employee census, and are we right in understanding that the employee census provides the employees with an opportunity to self identify as a person with disability?
MR WOOLCOTT: That's correct, and the big difference is that it's anonymous, as
distinct from the HR system.
MS EASTMAN: And when people are asked to participate in the census and to do so on an anonymous basis, the data suggests that the number or percentage of employees identifying as having an ongoing disability is 8.5 per cent?
MR WOOLCOTT: Correct. And as I understand we are also providing you with the latest census results of 2021, which will show that figure having moved to 9.3 per cent.
MS EASTMAN: Right. Now, we asked you to address why you think there may be a disparity between the records in the human resources system and the responses from the census, and I think you've addressed this at paragraph 36 of your statement. So, where you sit, as the Commissioner, how do you account for that difference, and it's not an insignificant percentage difference, is it, between employees who are disclosing because they have to, or employees who are disclosing on a voluntary basis where they don't have to be identified personally?
MR WOOLCOTT: No, look, it's a very good question, Counsel. I mean the disparity is almost double, and the question is why. The Wallis report looked at that, and it looked at our last strategy ---
MS EASTMAN: Just before that, can you tell us what the Wallis report is so that people following your evidence know what you're talking about? That was a review, was it not, into the previous strategy?
MR WOOLCOTT: Correct. Apologies again, Counsel. Yes, the report was a review done by an independent organisation into our last strategy, which expired in 2019. They put forward a number of thoughts in relation to that. We have also sought to explore, through our census in 2017 and 2019, some of the reasons behind that and we look to do further work in the forthcoming census. I think there are a range of reasons, but one of them is obviously there's a sense that there may not be any benefit in disclosing or sharing that you have a disability. And, worse than that, there may be a sense by some that it would actually hurt them in terms of their employment.
So there's a big cultural issue around this, and something we have discussed within the APS, and we've discussed with Ben Gauntlett from the Australian Human Rights Commission, and many others about what we need to do. There may be other reasons as well, people just choose not to disclose if they have a disability, or share that they have a disability, and people may not have been asked. I think we set out for you in our submission a range of reasons why people haven't done that. But clearly there is a cultural issue and something we will need to work on in this strategy.
MS EASTMAN: Have you reflected on this as a possible reason, and that is that when you have this disparity in terms of what is disclosed because it has to be, and
what may be disclosed anonymously, is that saying something about the particular workplace or workplace culture in the sense that it's telling you that your employees don't feel safe in disclosing matters about themselves that may be relevant to being able to do their job?
MR WOOLCOTT: Yes. Look, I can't we don't have the sort of data to definitively say that. What you can think about in this is that it's not that they don't feel safe, it's that they may not see any benefit in doing so, and that may not help them. So that's a problem in itself. But whether they don't feel safe disclosing that data, I would be surprised if that was a significant number of people. I think, just going on memory, I haven't got my submission in front of me, but I think when we looked at the numbers behind why people didn't disclose, I think it was the 2019 census, about 10 per cent may have put it down for that reason.
MS EASTMAN: Is there another way in which you could approach this question, and instead of asking about a person or an employee to identify a characteristic such as disability --- I'm accepting that might be defined in different ways --- is you could ask employees and to collect data about the number of employees who seek or require an adjustment? Would that give you a better indication?
MR WOOLCOTT: That's certainly something we could consider. As I say, we do the census every year, we are constantly refining the questions and we can also look at how we collect our human resources data for agencies parameters as well. But clearly, one of the cultural issues we want to manage in this strategy is --- it's not the only one, let me emphasise that, but one of the cultural issues is to have people feel comfortable sharing their disability with their employer.
MS EASTMAN: Now I'm going to ask you about targets as my second topic, so I will come to that. But my final question to you is, do you agree that 4 per cent or even 8.5 per cent is not good enough for the Australian Public Service?
MR WOOLCOTT: 4 per cent so far as our target of 7 per cent, two points I would make there, Counsel. One is ---
MS EASTMAN: Sorry to jump in. I do want to separately ask you about targets, but just at the present point in time, not the future but the present point in time, 4 per cent or 8.5 per cent at the present point in time is not good enough, is it?
MR WOOLCOTT: What I would say to that, Counsel, is that we are working off human resources data, which is the 4 per cent data, and that is not good enough. We have a target of 7 per cent. So that is the data that we are working off, and that is the data we will use to see how we are going towards our 7 per cent target.
MS EASTMAN: All right. Mr Fennessy, can I come to you. So in terms of the available data in the Victorian public sector, you can look at the employees who are employed in the public sector but also a much broader group of employees who work for public authorities. So, performing public services but not necessarily employed
by the government per se. So you've got those two categories in Victoria?
MR FENNESSY: Yes, that's correct. The one point I'll clarify is that we define the public service as an inner core of what is often thought as public servants working for government departments, and cared for under the Public Administration Act. They are employees working for secretaries and a specific smaller number of defined entities including Victoria Police. And then, with reference to your second point, the broader public sector is all owned or controlled by government but governed under different governance like statutory authority boards, et cetera, and that is a different category, it is a broader and wider cohort because it takes into account employees including teachers in the state system, nurses, corrections workers, et cetera. The former category is public servants working in departments under a secretary.
MS EASTMAN: That latter group is, in terms of a head count, just over 50,000; is that right?
MR FENNESSY: Counsel, the former group, the public service, is just over 50,000. The latter group is over 300,000.
MS EASTMAN: In terms of the data you provided to the Royal Commission, the percentage was based on the smaller cohort of the 50,000?
MR FENNESSY: That's correct, and I could clarify that if it assists, Counsel. So the reason why we focus on the public service is that's part of the state commitment under our Victorian State Plan, where under the state plan, and this is in my evidence in paragraphs 135 and following, the state plan comes down to a state economic participation framework. So the state plan, “Absolutely Everyone” comes down to “Every Opportunity”, which is the economic participation framework, and in our the plan that we are responsible for, we at the Victorian Public Service Commission, is “Getting to Work”, and that is focused on the public service with the target of 6 per cent as an interim and 12 per cent by 2025. So in that respect we work within those parameters.
MS EASTMAN: In terms of the numbers provided to the Royal Commission, of the just over 50,000 in the head count, 218 employees identified as employees with disability, and that's how we get the 0.4 per cent. And again, like the Commonwealth, when you've done a survey of the employees and they can identify on an anonymous basis, that figure goes up to 3.7 per cent. So you, I think, have said in your statement there are some COVID factors in terms of the count. So with the 0.4 up to 3.7, can you explain to the Royal Commission the reasons you think there's that disparity in Victoria, and anything you want to add to explain the COVID implications on these numbers?
MR FENNESSY: I can, Counsel. Could I first just correct one point. So in paragraph 74 of my evidence, it's 0.4 per cent as you correctly identified. And then, when we look at our survey results, it's in fact 5.2 per cent.
MS EASTMAN: Thank you. I've got a 3.7. So 5.2 per cent?
MR FENNESSY: 5.2 per cent, yes. That's in para 75, and it makes the very point that you have made, that there is a significant gap in percentage and in number. So to your first question why is there that gap, and then to your second part what happened with COVID to influence those figures, that gap is quite consistent, I think, with Mr Woolcott's evidence, which is, the 0.4 per cent relates to workforce data collection, and in my evidence it's quite specific that that measures the number of employees who have identified to their employer, they identify with a disability. That's the first point.
The second point is that the employer has recorded that. And then finally they have reported that in data collection to us. So to me, the work of 0.4 per cent is the representation or the number of people who have shared with their employer that they identify with disability, and then the second point is, we knew, from many years of survey collection, that the workforce data was an insufficient way to understand who identifies with disability for some of the similar reasons that Mr Woolcott identified.
So over many years we've refined our survey collection, and for 2020 that was 5.2 per cent. And seeking your assistance, Counsel, we knew that we have and in my evidence we said that we would have new figures from 2021 and they were just published last Friday. So it was too late to, you know, put in a formal update about that. But I can confirm to Commissioners through you that that's now 5.6 per cent. So that's for 2021. And in my evidence, we said that we would anticipate those new figures, and we've got those now.
And then to the main part of your question why is there such a difference, again, in my evidence you would see that we not only knew that there was a better way of collecting information through survey, we commissioned the Melbourne Disability Institute through the University of Melbourne to do research around how to collect better and complete data. So our view, and my view as Commissioner, is that survey data gives us a much better understanding of people who identify with disability rather than workforce data, and we focus on the latter, not the former. We also, or I make the point to you that we should improve workforce data collection, but there are several factors why that is, in my evidence, that is an imperfect way of collecting that data.
MS EASTMAN: Do you ask that question of employees as to whether an employee needs an adjustment, and would you accept that that's a different way of perhaps getting the information that might help identify whether a person has disability? If you ever need it. I mean, if you only need this information for adjustments, that's one thing.
MR FENNESSY: Look, and that's a very important question, Counsel. In my experience, and my evidence is that that leaves too much reliance on the fact of an employee wanting to ask for an adjustment. There may be people who identify with
disability who may not be aware or may not be wanting to ask for an adjustment for whatever reason. So rather than focus on workforce data collection, we have moved more to that approach that Mr Woolcott talked about, how to use positive language around information collection, creating a safe and inclusive workplace environment and culture which you've already discussed, Counsel, and addressing unconscious bias around data collection.
Those three points have all come from the research done by the Melbourne Disability Institute and also the work that we've done with our own office for disability within Victorian Government.
MS EASTMAN: I've asked you both this question for this reason. The Royal Commission heard back at Public hearing 9 from a young man who I mentioned in my opening earlier this week who passed away in April. And the Commissioners will recall his disability was very visible. But he made the point that he tried so hard never to ask for an adjustment because of the perception of wanting to fit in and not be a burden.
So he had no difficulty identifying as a person with disability because it was obvious, but I'm not sure he was ever asked about being able to disclose whether he required an adjustment in an anonymous way that might have allowed him to tell his employer something that he felt uncomfortable doing. So I'm asking you this question because from the Commissioners' perspective, we need to think about what might be other options and different ways of doing things. And, given the numbers that you've identified and that disparity between less than 1 per cent and then, as you say, the newer numbers being quite high, is that telling you something about the employees and adjustments, or is it just simply collecting data to say "We've got the disability numbers done"? So it's the purpose of the collection of this information we might ---
MR FENNESSY: Commissioner, I agree that it's the former, it's telling us about how we need to collect that information better, and I think recognising so to me, or from a Victorian Government perspective, we want to improve our workforce data collection and our survey collection, so it's both. And with the former, we need, and we are investing in psychologically safer workplace cultures where people can share that workplace adjustment information and share other information through survey.
If I may, an example in my evidence is the education and training we are providing to managers and organisations, including around disability awareness, workplace adjustment.
MS EASTMAN: Can I jump in there, because that is one of my 13 topics. Hold on to that and I will come to that.
MR FENNESSY: Yes.
MS EASTMAN: Ms Telfer, thank you for waiting patiently.
CHAIR: Sorry, would you mind if I asked a question of Mr Fennessy. I see from paragraph 72 of your statement that the 2020 survey had 17,000 odd responses, I assume out of a population of 50,000. So that suggests a response rate of 35 per cent or thereabouts. Why were there so few responses compared with the 2019 survey?
MR FENNESSY: Commissioner, thank you for that question. That was the COVID impact for 2020. And Counsel did ask me that, and I didn't come back to that. What we found was, and this is in my evidence, that the full People Matter Survey, as it is known in Victoria, wasn't conducted in 2020. We did a modified and shorter survey, and we anticipated and in fact noticed a drop off in survey respondents because at that stage Victoria was in such deep lockdown, and a lot of staff simply didn't have the amount of time to complete the survey.
CHAIR: Thank you. I understand that reason. With the People Matter Survey, what was the response rate?
MR FENNESSY: The People Matter Survey response rate, I'm just trying to see if my evidence goes to that. The People Matter response rate was lower that year. I don't think I've got that exact number in front of me, but I'm happy to take that on notice.
CHAIR: All right, perhaps that can be taken on notice, I don't want to take up time with that at the moment. But underlying it is the possibility that the response might have something to do with the percentage of people who are prepared to say that they are people with disability.
MR FENNESSY: Commissioner, I agree with that, that the impact on the People Matter Survey had impacts on a whole lot of data we collect, including around diversity inclusion levers. Although we were pleased to see the response rate improved in 2020 and in this year. So that's also something we are looking at as we review how we can collect data, including under times of stress and pressure across our system.
CHAIR: Thank you very much.
MS EASTMAN: Ms Telfer, the head count in the Northern Territory for Northern Territory Public Sector employees as at June 2020 was 29,590 people?
MS TELFER: That would be accurate.
MS EASTMAN: In terms of the percentage of employees identifying as people with disability in the human resources records as at 31 December 2020, it was 1.2 per cent; is that right?
MS TELFER: Yes, that's correct.
MS EASTMAN: The Northern Territory has also undertaken a survey or a census of employees, and the 2021 People Matter survey indicated that 4 per cent of public sector employees identified as persons with disability; is that right?
MS TELFER: Yes, that is right, yes.
MS EASTMAN: That survey also asks people why they perhaps hadn't identified in terms of disability in forms of the more formal human resources records, and people said they didn't identify themselves as a person with a disability, or they chose not to disclose because they didn't require a workplace adjustment to perform their role. So, can I ask you the questions I've asked the other Commissioners: do you have a view as to why there is this disparity between the 1.2 per cent and the 4 per cent? And I will put that quite loosely because I know I'm taking, from the data you've given us, a number from 2020 and matching that with a number in 2021. So I'm nervous about comparing the different years, but I'm working with the data that we've got. So what can you tell us about that disparity?
MS TELFER: I'm very happy to do that. The People Matter Survey was conducted in late February, early March of 2021 and so the difference about the population cohort who we were surveying wasn't too different in a temporal sense. The People Matter Survey is an anonymous survey and I think that gives people a lot more confidence to disclose.
Importantly, as you note, and it's in my statement at paragraph 4.4, we asked people why, why they hadn't disclose in the formal My HR system, it's a place where people can identify themselves into particular categories of population or other characteristics and so we don't mandate that people need to say that they have a disability or they are Aboriginal, et cetera, et cetera. People do that if they wish to. And we encourage people to do that.
But the survey that we conducted, the anonymous survey that we conducted earlier this year, we deliberately asked people why they didn't disclose, if they hadn't disclosed. And about half of those people said, well, it was because they don't require a workplace adjustment. But I think more importantly, we got information from around about 47 per cent by a large number of other employees, that they felt that identifying as a person with disability would have a negative impact or they had had a negative experience in the past, unsupported environment which, for me as the Commissioner, I take a lot of note of what people put in that anonymous survey.
It's a great pointer, I think, as to where we need to go and in building a culture here in the Northern Territory where we have more supportive workplaces. We know we have a long way to go yet. And I'm sure you will take me through a number of other questions.
MS EASTMAN: I will.
MS TELFER: So I don't want to speak too soon, but there is a whole lot of work that
we've got ahead of us next year about our new strategies.
MS EASTMAN: Right. Now, can I ask all of you, is that each public sector does an annual or frequent survey of employees. Do you track the longitudinal data in the sense that you can look at the experience of people identifying with disability over a slice of time rather than just on an annual basis? And, if so, what do you do with the longitudinal data?
Mr Woolcott, can I start with you?
MR WOOLCOTT: Yes. We do have that capability, Counsel, and it goes to former policies and our approach to personnel management and disability inclusion.
MS EASTMAN: Right. Mr Fennessy?
MR FENNESSY: Counsel, we also collect longitudinal data, and the two points I would make, if I may, is firstly, we have a continuous learning approach. So not only have we commissioned research with Melbourne Disability Institute in the past, we continue to do that. We also share as a best practice approach with the National Disability Employment Working Group, which includes the Australian Public Service Commission and all the other public service commissions, so to look at what best practice looks. And then formally we work very closely with our Enablers Network, which are people who identify with disability within the Victorian Government who have been members of this network, so we have a range of ways to do that. And then in our “Getting to Work” plan as well as based upon longitudinal data and feedback, we design and adjust new programs.
So the toolkit I mentioned that will be the subject, I think, of a later question, that has been designed based on that longitudinal data and feedback.
MS EASTMAN: Ms Telfer?
MS TELFER: The People Matter Survey that we conducted earlier this year was the first detailed survey that has been conducted since 2016. There had been a mini survey done in 2018 and for that reason, it's very hard for us to track that longitudinal data, and the story. But we do hope to conduct the next survey, given our small jurisdiction, in 2023. We hope to conduct ours again in 2023, and I will be very much looking to see what changes have been made since the other one, and what impact we are having through other different strategies that we put in place.
MS EASTMAN: I take it, in reading and considering all of your statements, there appears to be no dispute that there is a need to increase the number of people with disability working in the public sector. But I want to understand why. Is it based on the economic case that you need to have plans in place for looking at labour force participation into the future generally? Is it based on accepting a human rights based approach where Australia has got obligations in relation to the rights of people with disability to acquire jobs, maintain jobs, to work safely and to have the opportunities
in career progression? Or is it something else?
Mr Woolcott, what's the reason for the need to increase the number of people with disability in the APS?
MR WOOLCOTT: Thank you, Counsel. I would add it's a combination of the two things you mentioned. The - capability is something we are having to manage as public services, and indeed the private sector, and there is a very large and very capable cohort out there who are people with disabilities who we want to integrate into our system and to the public service. There is a very strong economic case for that in terms of workforce management and workforce strategies. There is also a human rights case, and you mentioned the Convention on the Right of Persons With Disability and article 27 of that, and there is a very strong case that flows from that in terms of ensuring that everyone has equally good access to the right to work. There is another reason, and that is about diversity. It's very important that the public service actually represents the people it serves. So it's equally important that we have people from all aspects of Australian society and facing all different challenges that they face, whether they be people with disability, whether they be Indigenous Australians or whether they be members from the mature workforce, or they be new Australians coming as migrants into the community, and from communities which have had different values towards their approaches to work.
So it's a whole array of different issues which combine to make it important that we do actually have a strong push to get more people with disability into the workforce and into the Australian Public Service.
MS EASTMAN: Are they the factors that underpin the way that policies and strategies have been designed?
MR WOOLCOTT: They are. Earlier this year we produced the first Australian Workforce APS Strategy, which was a high level strategy looking across our workforce requirements over the next five years. And as part of that workforce strategy, we are focused on particular skills and particularly the need for digital and data skills in a very competitive environment, but also a range of other skills. We also focus on leadership, on how we recruit, we train and develop people in the public service. But a big part of that also is diversity and inclusion aspects, and so we have sought to bring that work around diversity and inclusion much closer to our workforce strategy work as well. Because, as you set out earlier, there are both economic, there are human rights, and there are diversity reasons why you want to have a very substantial workforce consisting of people including a whole range of diversity, including people with disabilities.
MS EASTMAN: Mr Fennessy, is the situation in Victoria driven by economics, by human rights or by something else? Or a combination of all?
MR FENNESSY: Thank you, Counsel. It is a combination of all. And my evidence will be similar, I think, to Mr Woolcott's, and not just because one of the main
reasons is in our “Getting to Work” Disability Action Plan, we actually outline the case for change, and that's a published document, that talks about economic participation and we model the impact on GDP, $50 billion increase by 2050. So there's an economic case.
The participation is part of that, workforce participation. Importantly, it leads to high performing organisations and this is both diverse workforces --- diverse inclusive workforces and diverse and inclusive workforces with people with disability. And as part of that argument in the case for change in the Victorian plan, it also talks about improved workplace culture. Because we will put a focus to improve culture to support people with disability that has a broader benefit of a generally improved workplace culture, so it becomes a high performing organisation, it's a better place to work. That's the second point.
Interestingly, in the work that was done in the model “Getting to Work”, we modelled a lower risk around health and safety incidents. People with disability report fewer occupational health and safety incidents ---
MS EASTMAN: That is also one of my topics I want to come to as well.
MR FENNESSY: Sorry to pre empt that. There are two other points. We definitely talk about not only opportunities under the Equal Opportunity Act and the Victorian Charter of Human Rights, but also reflecting Victorian legislation through the Australian Disability Act which requires employers to do it, but to me, it's not just because law requires it, it's because it's a genuine reflection of the public sector value of human rights and respect.
The last point which I don't think is as explicit in our plan, but it's a point that I make very frequently in my role as Commissioner, is that we do need to reflect the communities whom we serve, and that is --- not only has Mr Woolcott already talked about that, but if we are providing good disability services to Victorians, then that ethos of "Nothing about us without us" is so important that we have people with disability both helping design and deliver those services, or just generally involved in any part of service delivery and policy in Victorian Government.
The other point is I think it models good behaviour from the public sector to demonstrate to other sectors, particularly the private sector, that it can be done. So to me there is a public value and public leadership argument. Happy to talk about that more, Counsel, as required by your questions.
MS EASTMAN: Ms Telfer, the Northern Territory has some very unique features about its public sector, and a very large population in terms of remote and regional living, and also a very high First Nations population. So what are the drivers in the Northern Territory? Are they economic, human rights or any particular features that are unique to the Northern Territory?
MS TELFER: So, yes, you're quite correct, Counsel. We have one sixth of
Australia's land mass, 1 per cent of Australia's population and our population is 30 per cent First Nations. So we do have some very unique demographic positions here. But our strategy is about helping or allowing people with disability to fully participate in our society. So it's from a human rights perspective. We think participation of people with disability in our workforce is important for social inclusion, also economic independence and so it's a human rights and economic independence, social inclusion.
We are also a very small population, and what I say, quite frequently, is that we need to use all the available talent we have here at our disposal. We are not in the luxurious position of being able to not include everyone who is talented. We need as many talented people that we've got in the territory working for the Northern Territory Public Service, and for me that is really super important.
We also know that diversity is so important as to reflect the community so that the policies and programs and services that we deliver are developed in such a way that they are relevant for our population and like the other Commissioners, this is also about modelling best practice for the non government sector. The profit and not for profit organisations and companies that work here in the territory. But for us it's about social inclusion, economic independence, using all of the available talent we have at our disposal.
MS EASTMAN: I want to turn to the topic of quotas and targets. No one uses the word “quota” but they’ve embraced the word "target".
Ms Telfer, the Northern Territory doesn't have a target, does it?
MS TELFER: No, Counsel, it doesn't at the moment. It's a topic of hot debate at the moment.
MS EASTMAN: I don't mean to leave you out of this conversation, but I will focus on the areas that have a target. Mr Woolcott, the APS now has a target of 7 per cent as part of the 2025 Employment Strategy, that's right, isn't it?
MR WOOLCOTT: That's correct.
MS EASTMAN: Were people with disability involved in, or people who determined what that target should be?
MR WOOLCOTT: That target was announced in early May 2019 ---
MS EASTMAN: I'm just asking you about the involvement of people with disability determining the target or being involved in setting the target.
MR WOOLCOTT: Thank you, Counsel. I want to actually describe how that target was set.
MS EASTMAN: I'm going to ask you that question, but I'm starting with understanding whether people with disability were involved in or determined the setting of the target.
MR WOOLCOTT: Well, I was trying to answer that, if you just give me a moment, because the target was set by --- during the election campaign in early May 2019 as part of a wider package of announcements involving NDIA and the Dandelion Program. The APSC was not consulted about that, it was an election campaign, and the Prime Minister's Office would have taken advice from a range of parties. We don't have a monopoly upon the provision of advice in terms of the public service, and so I cannot say but --- as to who in the Prime Minister's Office was consulted.
But as I said, it's a matter for them to respond to that question.
MS EASTMAN: So the Commissioner wasn't consulted about the setting of a target?
MR WOOLCOTT: It was during the election campaign in, as I say, early May 2019, as part of ---
MS EASTMAN: And accepting you don't have the responsibility for the setting of the target if it was done during the course of an election campaign, because you're not in a position to know whether people with disability were consulted?
MR WOOLCOTT: I would say two things in relation to that. One, I have the responsibility for policies. Government can take their advice from a range of different sources, and I would be very surprised if the Prime Minister's Office hadn't done that. So we have that responsibility. And I also note from my perspective, the targets looks a reasonable one and is very much in line with Cabinet's target for 2025.
MS EASTMAN: Is there any science that you are aware of or any process to identify 7 per cent as the number?
MR WOOLCOTT: Not that I'm aware of.
MS EASTMAN: It might be suggested that, for example, if the employee census is telling you that 8.5 per cent of employees identify as people with disability, it seems to be that the target of 7 per cent is a little redundant, is it not?
MR WOOLCOTT: No. I respectfully disagree with that, Counsel. We are working off the 4 per cent human resource data, so there it is a significant stretch target there to get to 7 per cent ---
MS EASTMAN: Is the stretch target a stretch target to encourage people with disability to have to disclose so that you can have the percentage in the human resources system? That's a stretch target, isn't it, disclosure?
MR WOOLCOTT: That is only one part of an overall approach to this which is actually set out in the strategy. So, yes, it is about attraction and retention, and yes, it is about disclosure. But it's also about culture. If you look at the strategy and the various actions in the strategy, so much of it is about changing the culture of the public service. So much of it is about leadership in terms of the public service.
MS EASTMAN: How does a figure of 7 per cent versus 17 per cent versus some other per cent help you on the culture at all?
MR WOOLCOTT: It's only one aspect of the way we are approaching this problem. I think it's very important to have a target. I also make the point that the target is not a ceiling, it's a floor. It does require an additional 4,000 jobs on current figures to meet that target. It's not simply about having people disclose or share. We want them, sure, to disclose or share because we think it's an important part of that cultural shift that they feel comfortable doing so, but that is not what this strategy is about. The strategy is about a whole range of issues in relation to recruiting people with disabilities, the talents that they bring, the diversity that they bring, and also the culture that we create about an inclusive and diverse public service.
So yes, disclosure is a part of it, and we will be running our programs and encouraging people to disclose, but that is not what the strategy is about and that is not what the target is about.
MS EASTMAN: In terms of the target, there is not going to be any sanction for failing to meet the target, is there?
MR WOOLCOTT: There are no sanctions attached to the target. But this is a target set by the Prime Minister. All the data around how we are tracking on that target is public or will be public. And if you look at the action plan, the Secretary, agency heads and myself are all accountable for meeting that target. So there are accountabilities. Who is to say how we'll go, but this is something which is taken very seriously, I'm very happy to talk about the process in which we will be going forward to meet that target.
MS EASTMAN: I think a combination of paragraphs 21 and 93 of your statement is that it's actually each agency that's required to integrate, implement and deliver APS wide strategies and actions in their own workforce management plans, and ultimately is it not the APS agency head who is responsible for ensuring the agency meets the target?
MR WOOLCOTT: That is the way the Australian Public Service is structured. The agency head is the accountable authority in terms of employment of these people.
MS EASTMAN: So you as the Commissioner have no capacity to force an agency to increase its recruitment of people with disability, to encourage them gently or to give them a little nudge in terms of increasing?
MR WOOLCOTT: I was going to come to that, Counsel, that is exactly the way we work. If you look at the way we're structured, you have the Secretaries Board which is the 14 portfolio secretaries plus myself and the head of ONI, and we are the governance body of the public service. You then have a subcommittee of the Secretaries Board called the Chief Operating Officers' Committee, which was established at the beginning of February last year, set up to manage the reform process set out by the Government following a further review, and they quickly swung to working on the COVID issue.
It meets regularly around any range of issues including diversity and inclusion issues. We formally report to them twice a year in relation to diversity and inclusion issues, and if there is a particular matter, that will go before them and we report but I report to the Secretaries Board annually in relation to a whole range of diversity and inclusion issues, including this one, people with disability and our strategy here --- (overspeaking)
MS EASTMAN: There is no target in that 7 per cent that focuses on a target for promotion of people with disability in the APS? That's right, isn't it?
MR WOOLCOTT: That's right.
MS EASTMAN: There is no target for the retention of people with disability in the APS?
MR WOOLCOTT: There is no target, no.
MS EASTMAN: I note the time. If I can quickly ask the same questions of Mr Fennessy and we can have a short break for morning tea.
Mr Fennessy, the strategy “Getting to Work” plan includes a disability employment target of 6 per cent of people with disability across the Victorian public sector by 2020. So I assume that target wasn't met? And 12 per cent by 2025. So how was this target set and determined? Were people with disability involved in or did people with disability determine this target?
MR FENNESSY: The target, when it was developed, was developed with the Office for Disability within the then Department of Health and Human Services. And to your exact question, I don't know how many people within that team were people with disability. It doesn't go to your specific question but everything we do now, we do through the Victorian Enablers Network. The Enablers Network was set up as a result of the various state plans. So my first response is that everything we do now, we do through our Enablers Network and people with disability and we develop that target with the Office of Disability.
We did look at some evidence --- or we did look at specific evidence around that target. I think I know that my evidence in my statement says we looked at
national practices. We also looked at data including the disability employment rate which my understanding was about 11 per cent, so this helped to inform the 12 per cent. The NDIA, being the National Disability Insurance Agency, proposed disability employment target, which was 12 per cent. The Australian Public Service workforce reporting on disability, and also our own government department, the Department of Health and Human Services, their initial employment target in their People Strategy was 5 per cent. So in reverse, that builds up to that aspirational stretch target of 12 per cent.
And, to go to some of your earlier questioning, my own view in diversity and inclusion targets are really important. You may ask me about that separately. Stretch targets are really important. They've got to be reported on transparently, and they've got to be based as much available frameworks and evidence. So that's what ---
MS EASTMAN: You say in your statement I think at paragraph 196 that there's no consequences if the target is not met, or if the representation of people with disability does not increase. Could I put to you, it sounds a little hollow to say it's a good thing to have a target if there is no consequence if it's not going to be reached?
MR FENNESSY: Yeah, look, I would answer that in two ways. Firstly, the way we work in the Victorian Public Service or the way the public service functions is departmental secretaries are responsible for a range of policies and programs. We have a lot of different targets across a lot of different indicators, and generally they are to focus the efforts and the workings of secretaries, and they don't tend to be based on punitive consequences.
I could offer well, an example in gender diversity, we had targets without any specific consequences if they weren't met, but in my own experience we've significantly improved and indeed met some of those targets, and we have a similar approach to our targets for Aboriginal employment and other diversity inclusion levers.
And as my statement says, the Victorian legislation requires a Disability Action Plan but doesn't have specific consequences. So the answer to your question is no, there are not specific consequences or punitive measures for departments. And that approach is consistent, that lack of punitive measures or specific consequences, that is consistent with a range of policies and programs and targets across the Victorian Government.
MS EASTMAN: Am I right in understanding there is no target for the promotion of people with disability who are existing VPS employees?
MR FENNESSY: That's correct. Our target is about employment rates, and the target for employment of people, and it's not specific to those other promotion or retention factors.
MS EASTMAN: And no retention target either?
MR FENNESSY: Yes. Yes.
MS EASTMAN: Commissioners, would that be a convenient time to adjourn for 15 minutes to give everybody a break, a morning tea break?
CHAIR: Thank you very much. It's now 11.05 Eastern Summer Time. We will resume at 11.20.
ADJOURNED [11.05 AM]
RESUMED [11.19 AM]
CHAIR: Yes. Thank you, Ms Eastman.
MS EASTMAN: Thank you, Chair.
The next topic I want to turn to is the strategies, and we've already touched on the strategies in the discussion so far. So can I turn to the Commonwealth. There is an Employment Strategy 2020 to 2025, and the strategy is described as this:
The single authoritative APS wide strategy concerning the employment of people with disability in the APS and the accessibility and inclusion of employees with disability in the APS.
Are we right in understanding that this strategy was developed in what you tell us as extensive consultation, including consultation with people with lived experience of disability? Mr Woolcott, that is paragraph 71 of your statement.
MR WOOLCOTT: Yes, that's correct, and it sets out the extent of those consultations.
MS EASTMAN: This isn't the first strategy that the Commonwealth has prepared. It's the third, isn't it? The third Disability Employment Strategy?
MR WOOLCOTT: That's correct.
MS EASTMAN: Had the previous strategies had targets in them?
MR WOOLCOTT: This was the first strategy with a target.
MS EASTMAN: I think there is some background noise, just check everybody's audio is fine.
In terms of the previous strategies, was there any evaluation done of any previous strategy?
MR WOOLCOTT: There was an evaluation done of the strategy which ended in 2019, the second strategy. That was done by an independent group called the Wallis Group, and I think you have their report with you, as I understand.
MS EASTMAN: Indeed. And did the evaluation form sorry, I withdraw that.
How was the evaluation formed in developing this more recent strategy of 2020 to 2025?
MR WOOLCOTT: It helped point out what we needed to do better. This is the third, as you mentioned, Counsel, each strategy builds on the other and it did provide a lot of very useful information around what we needed to do a lot more work on. In that sense it has been reflected quite closely in terms of the current strategy that we have.
MS EASTMAN: The two previous strategies had not been effective in making a real change in the number of employees with disability in the APS, would you agree with that?
MR WOOLCOTT: I would certainly agree, Counsel, that they didn't move the dial in terms of numbers.
MS EASTMAN: What do you mean by "not moving the dial"?
MR WOOLCOTT: I'm sorry, I mean that the number that was disclosed in terms of people with disability had remained pretty static at 4 per cent.
MS EASTMAN: That would tell you, does it not, that the strategy and the elements of the strategy weren't working?
MR WOOLCOTT: I'm not sure I would say they were weren't working. I think an awful lot of work and thought went in to think through what was the culture necessary to ensure that we were going down this path in a way that was going to work. I can't comment. It was before my time in terms of the details of the other two strategies, but I can comment on why I think this strategy will be better.
MS EASTMAN: I will ask you about that in a moment.
MR WOOLCOTT: Sure, Counsel.
MS EASTMAN: But you need the public sector in the Commonwealth, so your employees need to have confidence that this strategy will actually achieve outcomes. Do you accept that?
MR WOOLCOTT: I accept that.
MS EASTMAN: This strategy identifies 18 action items and you have provided to the Royal Commission a copy of the strategy, and it's also publicly available. What are going to be indicators that APS employees can look to, to know whether or not this strategy is going to make a difference? Is it just meeting the 7 per cent target or will it be something else?
MR WOOLCOTT: No. If you look at what the strategy is trying to do, it's set a target, that's for the first time. It has also been heavily built on consultation with the community that look after people with disabilities. It has been heavily consulted with the Australian Human Rights Commissioner Ben Gauntlett, who has been involved in advising it. I think one of the big differences is it is going to be heavily coordinated across the system, in terms of there's a major move, and partly it has been accelerated by COVID and how we've handled COVID in the Australian public sector, but that sense of "One enterprise, one APS" is a big part of where we are moving to, and that would be a big part in terms of making sure this strategy is effective.
MS EASTMAN: In that context, can I ask you, and we know from your CV that you have extensive experience in dealing with some of the international human rights committees, so you would no doubt be aware of something called a Focal Point?
MR WOOLCOTT: Yes.
MS EASTMAN: Yes?
MR WOOLCOTT: Yes.
MS EASTMAN: To what extent have you or your agency been involved in the Focal Point work, which, as we understand it, is the responsibility of DSS and ADD in taking this employment strategy into the Australian Government's implementation of the CRPD. Is it linked, when you say whole of government wide, whole strategy, does it link in and connect in centrally to the work done through the Focal Point?
MR WOOLCOTT: In terms of the coordination of the strategy and the way we set it up, is there was secondments from across the public service, particularly the Department of Social Security, who have responsibility for the national strategy, they participated very actively and we've worked very closely at the working level across the Government in relation to how this strategy fits in with the national strategy as well. So, yes ---
MS EASTMAN: I'm just asking about the Focal Point which is that provision in the CRPD which requires to have a Focal Point in government's to co ordinate the government's response to meeting its international obligations under the CRPD. Can I just put this to you, because it seems that the workforce of the APS are going to be
critical that delivery of an implementation of human rights, surely your agency should be absolutely critically involved in that Focal Point work?
MR WOOLCOTT: In regard to our particular slice of this work, the Australian Public Service and what it can do in terms of setting the standards and targets and general sort of manner in which we manage these issues, we spend a great deal of time in coordinating with Attorney Generals, with DSS. But are responsible for only one particular slice. But yes, as I said, one of the big features of this is the way it has been coordinated and consulted both across government, but with the wider community involved in disability issues.
MS EASTMAN: So when, for example, we've had a recent hearing and we've asked the Australian Government about the agencies involved in coordinating Australia's response to the CRPD obligations, should we have expected to see you and your agency being one of the agencies with a core responsibility?
MR WOOLCOTT: Well, we have, as I said, responsibility for this particular piece of work, and at the working level, and I have to say I have not been engaged in terms of discussion with the Focal Point or with AGDs or DSS on these issues outside of Secretaries' Board where we do discuss it. But at the working level there is a great deal of collaboration.
MS EASTMAN: Can I turn to Victoria. So, Mr Fennessy, there is a Disability Employment Strategy in Victoria, and that's the Getting to Work and the Getting to Work Plan. Is that right?
MR FENNESSY: That's correct, Counsel.
MS EASTMAN: Is this the first strategy that Victoria has initiated that has a specific focus on increasing the employment of people with disability in the Victorian public sector?
MR FENNESSY: Yes. That's correct, Counsel.
MS EASTMAN: And this policy has 21 action items?
MR FENNESSY: That's correct.
MS EASTMAN: Those action items are designed to assist the sector to meet the target of the 12 per cent at the end of the policy, is that right?
MR FENNESSY: That is correct. But the other thing I would add is they are designed to meet the target and put in a whole other range of changes which will add to the target but in and of themselves are worthy things to focus on, like cultural improvement toolkits and direct support.
MS EASTMAN: Is the approach in Victoria one that the employment strategy has to
work with a broader Disability Action Plan for Victoria?
MR FENNESSY: That's correct.
MS EASTMAN: What is the relationship between the Getting to Work Plan and the Victorian Disability Action Plan?
MR FENNESSY: So the way I would describe it, Counsel, is there's three levels. The State Disability Plan 2017 is absolutely everyone, and that's the broader commitment to drive improvements for people with disability, and then every opportunity sits underneath the State Disability Plan. Every opportunity is the Economic Participation Plan for the broader Victorian state and economy and community, and then our plan is the third level which then focuses on public sector disability employment.
MS EASTMAN: Your role as the Commissioner is to have a leadership role in the Getting to Work Plan but you don't have the responsibility of ensuring that each agency meets its targets or obligations under the Plan; is that right?
MR FENNESSY: That's right, Counsel. And if I can make two quick comments. Firstly, the requirement for an action plan for each public sector agency comes from the Disability Act, the Victorian Disability Act. And then secondly, the governance is the work of the Secretaries' Board, and I'm a member of the Secretaries' Board.
MS EASTMAN: Is there a reporting mechanism for the employment plan for the life of the plan? Do you have to report six monthly or annually?
MR FENNESSY: Yes, Counsel, we report six monthly to the Victorian Secretaries' Board.
MS EASTMAN: All right.
Ms Telfer, in the Northern Territory there is a Disability Employment Program, and that's one of the key initiatives in the Employability Strategy 2018 to 2022; is that right?
MS TELFER: It is one of the strategies. It's an important the Disability Employment Program has been going for some time, since 1994. And it is one of the key parts of our Employability Strategy but our Employability Strategy from 2018 to 2022 comprises of a great deal more than just the Disability Employment Program.
MS EASTMAN: The Disability Employment Program predated the current employability strategy, is that right?
MS TELFER: That's correct. It has been going for almost 30 years.
MS EASTMAN: But that employment program is featured then on an ongoing basis
but fits into the Employability Strategy; is that right?
MS TELFER: Yes. That's correct, Counsel.
MS EASTMAN: It's the case, isn't it, that the Disability Employment Program was not achieving what it needed to achieve, and this is why you've expanded out, is it not, on to that broader Employability Strategy for 2018 to 2022? And I know I'm dealing with that at a very high level.
MS TELFER: Yes, of course. That's my understanding. As you note, the Disability Employment Program probably wasn't getting the traction or wasn't probably getting the inroads that we needed to improve the level of employment of people with disability in the Northern Territory Public Service. And a more contemporary and more full some approach was taken in 2018 to get an Employability Strategy that goes far beyond a Disability Employment Program.
MS EASTMAN: In the absence of any targets --- two questions. What are the elements of this strategy and then, secondly, how are those elements going to be measured if they're not measured against achieving a particular target?
MS TELFER: So the key elements are that we've got we've set several outcomes so that we've got an inclusive culture, and we measure that through the People Matter Survey. So that's a particular measure that we have that we proactively engage in initiatives and we have a number of reporting points about that. And in fact since the Employability Strategy was established in 2018, we have a champions and inclusion group which is the Chief Executive Officers --- in other jurisdictions they are called Secretaries or Director Generals, here in the Territory they are called Chief Executive Officers --- the large employing agencies, and we meet together on the (inaudible) and we examine what's going on in our various diversity initiatives that we embed, that we embed diversity in everything that we do, and that we become an employer of choice for people with disability. A number of other outcomes.
As you would note in the evidence that I tendered, we did a mid point review of the strategy earlier this year and we had a very brutal assessment, a very honest assessment of where we were, the good parts and the parts that we actually know that we have to improve.
MS EASTMAN: Your office doesn't receive any specific funding to support the work that you do with respect to the strategy?
MS TELFER: So we are a very small office. We have a couple of people just to explain the office, we have an employer relation side, a public (inaudible) and grievance part, and a strategic workforce part and an Aboriginal employment section as well. In our strategic workforce, there is an inclusion unit that has two to three people and some others when we need to. We don't get specific funding. I determine, as the Commissioner, how that money is how we actually direct our resources to priority activities.
MS EASTMAN: Mr Woolcott, at the Commonwealth level there's no specific funding for the employment strategy, and I think you say in your statement that it's just a matter out of the broader operational budget; is that right? And that the agencies themselves have to fund these elements of the strategy out of the own agency budgets; is that right?
MR WOOLCOTT: That's correct, Counsel. But this is our core business. This is about our people, about our capabilities, so it's seen as core business.
MS EASTMAN: When you say core business, are you suggesting that it doesn't require any additional or separate funding but it's a priority area within the existing budget?
MR WOOLCOTT: I am saying it's a priority area within the existing budget.
MS EASTMAN: Mr Fennessy, in Victoria, is there any specific funding to support the Getting to Work Plan?
MR FENNESSY: Yes, and in my evidence, it outlines how there were specific broader funding for the overall State Disability Plan and then we set out the specific funding that we were given. And some of that funding comes from other departments and that funding, as you would see from my evidence, has gone to, you know, research, implementations, to support our Enablers Network and a range of other things.
MS EASTMAN: I want to move to the topic of sorry, Ms Telfer?
MS TELFER: Ms Eastman, if I might add, I also levy each of the agencies on the Disability Employment Program, so that is a very key part of how we actually fund the work that we do. I just wanted to put that on the record.
MS EASTMAN: Thank you. I want to move to the topic of recruitment or pre employment. The Royal Commission has heard over the earlier this week, over the early days of this hearing about different practices in both the public and private sectors in relation to recruitment. At the Commonwealth level there is a RecruitAbility scheme. Is that right, Mr Woolcott?
MR WOOLCOTT: Correct, Counsel.
MS EASTMAN: That scheme reflects a particular Public Service Commissioner direction; is that right?
MR WOOLCOTT: That's right, under section 28.
MS EASTMAN: The purpose of that was that there needed to be what was described as a special measure, as that expression is used in the Disability
Discrimination Act ---
MR WOOLCOTT: Yes.
MS EASTMAN: --- and that was to have very targeted recruitment measures to increase the number of employees with disability; is that right?
MR WOOLCOTT: Correct.
MS EASTMAN: Am I right in understanding at a very broad level that RecruitAbility works in this way, that where a vacancy is advertised under RecruitAbility, applicants with disability who opt in and meet minimum requirements of the job are advanced to a further stage in the selection process such as an interview, if that's the next stage? So are we right in understanding that RecruitAbility doesn't guarantee that because a person has a disability, they will get the job, but it's seeking to look at the process of recruitment to make that pathway a little less complex for a person with disability? Have I put that fairly?
MR WOOLCOTT: You put that very fairly, Counsel, and of course the merit principle which is fundamental to the way we employ people in the public service is still there and plays a critical role in the final decision. But it also allows us to think about reasonable adjustments in terms of the interview approach as well.
MS EASTMAN: Well, if that word "merit" is somewhat contentious, is it not, in the world of recruitment, as to what merit means and who determines it? So is the focus really not so much on merit but looking at the person's skill, the requirements of the job, and their capacity to achieve what is required in the job? Is that what you mean by "merit"?
MR WOOLCOTT: Yes, and that's set out in the directions as well.
MS EASTMAN: Okay. Now, can you tell the Royal Commission the number of people with disability who have been employed through the RecruitAbility scheme?
MR WOOLCOTT: I cannot. I can tell you the number of processes which involves the RecruitAbility scheme, and that is 71 per cent, but we don't have data and I admit that's an issue. We don't have data in terms of how they fare.
MS EASTMAN: Is there a reason why data wasn't collected when the RecruitAbility scheme got up and running?
MR WOOLCOTT: I can't answer that. I don't know whether it was technical issues or what the issues were, but I do see that was being a hole in our data collection.
MS EASTMAN: Turning to Victoria, Mr Fennessy, are we right in understanding that the VPS doesn't utilise any specific disability affirmative measures programs like the RecruitAbility scheme?
MR FENNESSY: Counsel, if I may, we don't utilise some of the specific ones you mention, but we've got our own special purpose schemes, so we have a graduate pathway and a youth employment scheme, both of which have an opt in disability pathway. So they are two specific schemes that we do have.
MS EASTMAN: Turning to the Northern Territory, are we right in reviewing your material that there isn't a disability affirmative measures or action scheme like RecruitAbility in the Northern Territory? Is that right?
MS TELFER: I'm not familiar with the RecruitAbility program that you mention, which I think is the Australian Public Service
MS EASTMAN: Yes.
MS TELFER: --- but we have the Disability Employment Program which is specifically targeted. One of the things that we will be doing in the new year is looking at our current Employability Strategy, and like this one that was developed with people with disability, we will be talking to our various groups across the Territory about whether or not we should be putting in place a special measure as to Aboriginal employment, and we are looking very seriously at that at the moment.
So we don't have an employability program, I think, as you mentioned, but we do have the Disability Employment Program, and that has been pretty fundamental in not just giving some people with disability into our employment, but we also know that a lot of those people who have gone on to employment outside of the Northern Territory Public Service and so that has been a great pathway for them ---
MS EASTMAN: Are you able to tell the Royal Commission how many people have secured and retained employment in the Northern Territory Public Service through the Disability Employment Program?
MS TELFER: It has been quite small, but I think it has been around about 38 people.
MS EASTMAN: Thirty eight over what period of time?
MS TELFER: Over 26 years.
MS EASTMAN: So 38 people with disability over 26 years?
MS TELFER: Just over this period, but we have many more people with disability employed in the Northern Territory Public Service. Many more.
MS EASTMAN: One of the issues the Royal Commission has heard, particularly for young people seeking employment, is that the public sector might be an attractive option for graduate employment or early employment experience. Does the Australian Public Service have a specific program directed at young people with
disability, Mr Woolcott?
MR WOOLCOTT: Part of the strategy we are looking at that very much. We have, to put it in context, each agency is responsible for, as I say, its workforce management and its recruitment. What we are now trying to do is centralise some of that so, for example, under key professions like the digital profession or the data profession, or strategic HR or economists, agencies take responsibility for recruiting on an opt in basis across the Commonwealth for the recruitment process.
MS EASTMAN: Opt in?
MR WOOLCOTT: On an opt in basis, including looking at the issue of incidental recruitment levels as well as interns and graduates. So something which is very live, we have a very active program in terms of trying to recentralise a lot of this in specific skill areas that we need. And part of that work is we ran a short six week pilot with DSF on graduates to look at how that might work, and so it is something we are being mindful of. We are very keen to do something around this aspect. It has failed in the past and we understand why. Largely we had some very excellent recruits in terms of meeting the requirements, but they weren't taken up by agencies at that time, so we are trying to explore that further as to what we need to do.
Part of the issue was the wraparound support they might need, but it is a very live issue for us in terms of the strategy, and how we recruit graduates more on a sort of a --- as I say, involved process, on (inaudible) with disabilities.
MS EASTMAN: Mr Fennessy, this is an area where Victoria has had some success, could I put it that way. There is a graduate program, is there not, in Victoria and as part of the Disability Pathway 2019, I think you say this at paragraph 205 of your statement, a number of applicants with disability selected to enter the graduate program increased threefold, from five in a total graduate cohort of 90 --- that was 5.6 in 2019 --- up to 15 of a total graduate cohort of 83, being 18.1 per cent in 2021. Are you responsible for that particular program? And if you're not, let me know and I will save the question for another time. But is this something that you've got some knowledge about?
MR FENNESSY: I'm directly responsible for the grad program.
MS EASTMAN: What worked even on these relatively small numbers but it looked like something has worked here? What is it?
MR FENNESSY: Well, so it has worked. If I could add one other point first, I mentioned the graduate program which I will comment on now, the Youth Employment Scheme. We do also have a whole of lifecycle employment set of resources that will be launched at the start of next year. I just wanted to make that point because we are focusing at the Commission on early entry, pre grad, all the way through to executive, and that's in my evidence as well at para 209, so I just want to make that point first Counsel, if that's okay.
Going to your question, we have learnt a lot from our Enablers Network and from all about survey information about better designing pathways. I'm pleased to say it's not in my evidence because we haven't completely finalised our intake for 2022, but it looks like we'll have about 17 per cent. Last year was 18 per cent. There will be, I think, slightly more grads this year so it will be a higher raw number. We've got a very specifically designed pathways program for people with disability including a passport for the grads to take with them which addresses very specific workplace adjustments. A lot of our focus is on training the managers and the organisations to increase their awareness and their ability to create the right conditions, and this is all again on the evidence we gained from working with research entities like the Melbourne Disability Institute. And we also get direct feedback from graduates in that pathway. And because it's opt in/opt out, it's very interesting to watch some people who may not identify with disability may not opt in but will often do so when they are empowered with their own choice. It just means that that person takes with them the ability to work with each workplace to make sure it's well convened for them. And graduate programs often involve rotations, and ours do in particular. So that's the sort of success that is now sticking, if I may use that word, in that the higher number is being maintained.
The last point, Counsel, if I may, is we have about 5,000 people who apply for our grad program. So it's a very highly contested program. And for us to have 17 to 18 per cent people come through the disability pathway, that's beyond our targets and that's our future generations of public servants. So I think that's a really we're proud of that even though we know we can always learn and do better.
MS EASTMAN: I want to ask you now about your respective responsibility or power in terms of the way in which recruitment occurs in the public sector.
Ms Telfer, can I start with you. You have oversight of the whole of the Northern Territory public sector recruitment processes; is that right?
MS TELFER: That is correct.
MS EASTMAN: There is also a territory wide Workplace Adjustment Policy; is that right?
MS TELFER: Yes, that is correct.
MS EASTMAN: That Workplace Adjustment Policy has to apply in the recruitment process so the decision about hiring and the manner in which recruitment occurs, the Workplace Adjustment Policy has to be taken into account; is that right?
MS TELFER: Yes, that is something that we do want to have happen.
MS EASTMAN: Mr Woolcott, there is no workplace adjustment policy for the Commonwealth that applies across the board that you administer or require agencies
to comply with in recruitment; is that right?
MR WOOLCOTT: That's correct.
MS EASTMAN: Do you have any oversight in terms of directing the manner and the form in which APS recruitment occurs?
MR WOOLCOTT: We have the guidelines around recruitment in terms of --- and we are looking at what we regard as best practice and how we do that. We are actively involved with the recentralisation of parts of the recruitment process, particularly in relation to, as I said, skills which we are in short supply: data, digital and also strategic HR. We have set up professions models, so heads of professions, to run those. I'm the head of professions, I sit above them. In terms of recruitment practices which is on opt in basis we are very actively involved in how that is structured.
We are also actively involved with the Department of Finance in terms of a particular graduate recruitment rounds that they run, again on an opt in basis for the Commonwealth. But they are big brands, some of these Departments and agencies, and they look --- Foreign Affairs or Defence or Prime Minister and Cabinet, they look to run their own processes. But as I say, on an opt in basis for particular skills, we are pushing the Commonwealth towards a recentralisation.
One of the very interesting area is data and digital skills because these are it's a really competitive market out there in terms of Australia wide on these skills and, of course, location, a lot of these jobs are in Canberra but a lot of these people with skills aren't in Canberra, and the whole question of neurodiversity is an interests aspect and the whole idea of flexible work as well. We've all got very used to flexible work with COVID.
MS EASTMAN: That is a topic I want to come to. I skipped over the neurodiverse topic, but I want to come to flexible work. But can I just ask you this. One of the issues which the Royal Commission heard about is the way in which inherent requirements of the job can be a reason for an employer to refuse to employ a person with disability, or it might even be a reason for an employer to let an employee with disability go, to terminate employment. Do you have a role in reviewing or setting how APS agencies set inherent requirements of jobs?
MR WOOLCOTT: No, we don't. We set work level standards, but they are in the general. It's a matter for agencies how they choose to implement those.
MS EASTMAN: Mr Fennessy, in terms of your role, do you have oversight of the recruitment processes and the power to direct how recruitment should occur, both in form and manner?
MR FENNESSY: Counsel, we don't have those direct powers. We do have the two points I will make which I think are relevant to your question, we do have the
overall design and implementation of things like workplace adjustments, so that's as much a training and capability development role. That is quite explicitly focused on managers and organisations to avoid the perception or occurrence of agencies saying it's too difficult or whatever the perceived risk might be. That's very important. So we've got that role but it's not a legislative role.
We also do have quite a statutorily limited oversight over complaints and the ability to review specific complaints that we can then report back to heads of agencies on. And that is in the complaints process, that is a specific opportunity or, sorry, legislative role we have. It is quite narrow, and as a result under Getting to Work, we are focusing more on better processes including reporting so we don't have to wait for actual complaints. So we are taking that system approach.
MS EASTMAN: And you have got no power to require any particular part of the public sector to give adjustments either at recruitment stage or otherwise, is that right, you can't direct that to occur?
MR FENNESSY: I think that is correct. Yes, my evidence is I can't direct that. We can report on issues to a head of agency that might have come up from a complaint but we don't have that more specific directive power.
MS EASTMAN: Mr Woolcott, I want to ask you about accessible workplaces. There is no APS wide initiative regarding ensuring that the workplace is physically accessible. So that's buildings and then the fit out and internal way in which office space, for example, in the Commonwealth is designed?
MR WOOLCOTT: As part of the Workforce Strategy, one of the actions there sets out an audit which will be done by the Department of Finance in relation to all our office holdings and the issue of accessibility. So work is now being it will commence, has just begun, I think, on that. So there are issues around that side of the accessibility agenda. My understanding is, and I might be corrected on this, is that under our procurement rules we also have strong guidelines in relation to accessibility of any IT that are purchased ---
MS EASTMAN: Just on that, action 9 of the APS Strategy require all APS agencies to ensure all internal and external products are accessible, and we understand that to be a reference to include the IT systems and digital framework. Is that probably as high as we might get in understanding any requirement to ensure that workplaces are physically accessible, at least in terms of digital?
MR WOOLCOTT: Thank you, Counsel. That is correct. But there is also this audit which will be completed in relation to that to ensure accessibility. So it's a live issue we are very conscious of.
MS EASTMAN: Does your office work with the concept of universal design principles?
MR WOOLCOTT: I can't answer that.
MS EASTMAN: Do you know about universal design principles?
MR WOOLCOTT: No, which is why I can't answer that, Counsel.
MS EASTMAN: It may be those sitting behind you or following along will be anxious to take that as a question on notice and I'm happy to give you that opportunity.
MR WOOLCOTT: I will pass that on, Counsel, thank you very much.
MS EASTMAN: Mr Fennessy, in terms of Victoria, looking at the material provided, there is no sector wide initiative in relation to physically accessible workplaces or buildings; is that right?
MR FENNESSY: Counsel, my understanding is that for more physical places that's as much governed by disability access under Commonwealth legislation, and that is all similar to Mr Woolcott's answer, that is administered by our Treasury and Finance Department that manage our buildings.
In terms of the work we do about accessibility and workplace adjustment, that's more of a focusing on the systems and the capabilities of thepublic pervice to develop that, which was part of my earlier answer to you.
And then, just to make a comment on ICT and information, we have a very strong focus on accessible and universal design for both internal guidelines we produce within the public service, including to support managers, and also for anything that we put out for the public. So that's quite a specific role we have, but otherwise you are correct, we don't have a broad approach across the whole of the Victorian Government, at the Victorian Public Sector Commission.
MS EASTMAN: Are we right, I think this may be 305 of your statement, that in terms of addressing the technology aspect, the ICT, you've said that that's in its early stages, and it may not be fully accessible at the present point in time; is that right?
MR FENNESSY: That is still work in progress. We will be completing that next year, early next year. And as you will see and as you will know from my evidence statement, that has been developed with both our Disability Community of Practice, and the Enablers Network. But a lot of the products that we produce within the VPSC, including current products that we deliver for others to use within the Victorian Public Service, we use our own accessibility and universal design processes. The reference in paragraph 305 is for a broader or whole of government approach. So that's correct, Counsel.
MS EASTMAN: You have mentioned universal design process, but are you familiar with universal design principles?
MR FENNESSY: Sorry, Counsel, that was to me?
MS EASTMAN: Yes, it was.
MR FENNESSY: I thought I heard Vicki.
MS EASTMAN: I'll get to Ms Telfer in a moment.
MR FENNESSY: My apologies, Counsel. I am familiar, we have a very committed and passionate universal design team within the Commission, and we use those principles for services we provide across Victorian Government, including for disability access. And that includes, you know, literally the presentation of documents and accessibility in a digital context for a range of disability contexts.
MS EASTMAN: Ms Telfer, I will start with the universal design principles. Is that something you're familiar with, and if so, is it used in the Northern Territory public sector?
MS TELFER: I am not familiar with the universal design principles. However, I would say that we make sure that any of the material, any of the services at our workplaces are designed so that they are all accessible. And so that might be what you mean, but I will take that question on notice about the specifics of how we implement that ---
MS EASTMAN: Can I ask you then, in terms of like physical accessibility of workplaces and buildings, noting some of the fairly unique features of the delivery of services in the Territory, is there a Territory wide initiative or policy in relation to physical accessibility?
MS TELFER: Yes, there is. So our buildings, you know, there is a process of upgrading and refitting our buildings. So, for example, in Katherine at the moment our government centre has been completely refitted. Buildings are designed and fitted in accordance with the Disability Discrimination Act and aged buildings, if they are being renovated, are retrofitted, but it is a process that is still it's an ongoing process.
MS EASTMAN: Each of you has provided a fairly comprehensive statement addressing the issue of reasonable adjustments. So I just want to ask you about one aspect which is the workplace passport. The Royal Commission has heard about this earlier, and Mr Innes mentioned this in his evidence on Monday.
Mr Woolcott, is a workplace passport that enables a person with disability to have a passport with respect to adjustments something that is a feature of the APS?
MR WOOLCOTT: I would have to say I think it varies between agencies. I think it's an extremely good idea. I can understand the reasons why you want to have a
system like that in place. I know in my own agency we are looking at introducing that shortly, we haven't had it up until now. I think it varies with different levels of maturity across the public service in this regard, and it's certainly something I would be looking to encourage through a variety of channels we have.
MS EASTMAN: Could that be the sort of thing that could be subject to a guideline you might issue? Could you issue a guideline to make that mandatory across the APS?
MR WOOLCOTT: It's certainly guidelines. Guidelines wouldn't need to be mandatory, that would need to be directions. I prefer to act, where I can, just through guidelines. But you have something --- you have the (inaudible) committee, for example, something that we can take to that body. And so we think this is important and we should be looking seriously at it. So I absolutely understand the reasons why you would want to do something like that.
MS EASTMAN: Mr Fennessy, is there the concept of a workplace passport in Victoria?
MR FENNESSY: Yes, it is. It is very specific to our grads program. I think it’s the sort of approach that would be appropriate for employees generally, not just graduates. The graduate program as well is very much designed and co developed with people now in the Enablers Network. The other thing we have done quite explicitly is, with the deep lockdown, particularly in Victoria but other jurisdictions in Australia, we are very interested in the impacts on people with disability who are then working in different workplace contexts, particularly work from home. So we commissioned some work with Mr Graeme Innes on what we need to think about both through the lockdown and now that we are coming out of lockdown, what do the new hybrid flexible workplaces look like for people with disability, and what do workplace adjustments look like in that context. So that is involving a new work, and that's the sort of work that we will share and learn from with other jurisdictions through the National Disability and Employment Working Group, as well as apply within the Victorian Government. And using the passport is a very good vehicle for that.
MS EASTMAN: Ms Telfer, is there a concept of workplace passport that exists in the Northern Territory?
MS TELFER: Yes, Counsel, there is. We've articulated that in a guideline. It is voluntary. But we do make it available, and it's part of our whole workplace adjustment process. So we've got a well articulated policy. I don't have any visibility of utilisation of workplace adjustment passports, but we certainly encourage it. And one of the questions that I will be looking at over the next few months as we go about developing our new strategy is whether or not this is something that I should be mandating.
MS EASTMAN: Mr Woolcott, I want to just ask you about flexible working
arrangements. So Mr Fennessy has got in, I don't need to ask you and I'm conscious of the time, but looking across the APS and the impact of COVID and a situation where most people have experienced some form of lockdown and have really had to change the location of where they do their work, I know that this is a topic that Commissioner Galbally is particularly interested in, at the Commonwealth level what lessons can we learn from COVID about job design and about the way we work which might give us some guide to how we might better provide flexible working arrangements for all employees but particularly for workers with disability? Do you have any view on that?
MR WOOLCOTT: Yeah, it's an absolutely fascinating question, and it is very much about the future of the way we work. A big issue, and it's almost like you are observing a vast petri dish out there with the vast amount of experimentations from the private sector and co op and now the public sector jurisdictions across the globe as to how we structure ourselves. It's a really big issue, something we will be exploring further. The way we handled it during the COVID period is that obviously the welfare of our staff had to be balanced against obviously delivery of services to the Australian people. So we've been seeking to get that balance right. We have also been very careful to ensure that we follow state and territory public health orders. Something like 66 per cent of the Australian Public Service is located outside of the ACT as well. So it does raise really interesting issues from the perspective of people with disabilities.
So how there's the one about their immediate physical and mental wellbeing, and those are issues that arise, but there is also, I think, enormous opportunity, because the way that we may recruit and work in the future, if you have the ability to work more remotely, particularly if you are involved in data and digital issues, which does lend itself to flexible working, you don't necessarily have to be based in Canberra or the major cities. You can stay closer to your support networks and all those things. I imagine they are important to many people with disabilities.
So the opportunities for the way we recruit, the way we develop, who we recruit, and for people with disabilities I think are significant. But, as I say, this is very deliberate work that needs to be done by the Australian Public Service and involves the whole question of how we structure ourselves.
MS EASTMAN: So if we came back in, say, 12 months or 18 months time and asked you the same question, what could we expect to hear from you then?
MR WOOLCOTT: A more concrete answer.
MS EASTMAN: We may just do that. I'm racing through the topics and I'm going to ask the Commissioners to give me an indulgence and also the members of this panel if they've got time for an extra 15 minutes.
CHAIR: You surprised me, Ms Eastman!
MS EASTMAN: Well, I've asked you rather than just do it.
MS EASTMAN: I want to ask about leadership and promotion. One issue that has arisen for the Royal Commission is there's a lot of focus on getting somebody into a job, but then it may taper off in terms of opportunities for promotion and leadership. Can I ask you, Mr Woolcott, what investment has the Commonwealth made in developing leadership and including people with disability in leadership programs with a view to promotion? So we've seen on the material that if we look at the highest levels of the SES, I think there are four employees identified or positions at that level. There needs to be an additional five to make the 7 per cent target if we are going to strip that down to the particular level. So what investment is there at the Commonwealth level in leadership to promote people with disability into these higher levels in government and also in senior decision making positions?
MR WOOLCOTT: Yeah, I haven't seen that breakdown in terms of the four levels at the Senior Executive Service. I have the figures in terms of ---
MS EASTMAN: That's in your evidence.
MR WOOLCOTT: Yes, and it's 3.7 per cent in relation to the Senior Executive Service itself. So that is a leadership cohort, the senior leadership cohort of the public service. We've set up the Disability Champions Network, and that's headed by David Fredericks, one of the secretaries, Secretary of Industry, and he is obviously part of that champions process which a lot of that is about leadership and bringing people through the system and dealing with issues.
We've set up, for the first time, and their meeting will be next month for the first time, an NCS People With Disabilities Network. So there you have the leadership cohort of people with disabilities in the public service talking and advising us about how we need to bring people through the system, how we need to develop our leadership and manage our leadership.
We've also set up the APS Academy which opened its doors on 1 July, and that's a different way of approaching learning and development in the public service. It's about continuous learning, it's about a much more detailed focus on the craft and how we do our business. And a big part of that is about management and ensuring that people in leadership positions understand how to manage a range of issues, including performance. They are also including cultural issues, integrity issues and the sort of issues that we were thinking about today.
So we don't have any specific programs at the moment for people with disabilities in terms of leadership. They are part of a wider system. I would be interested to hear what the SES disability network will say about that. It's interesting. We have an Indigenous SES network, and you talk to them about specific Indigenous management programs or training programs for the leadership and they say no, they
say they want to be part they don't want to be singled out, they want to be part of the wider cohort going through development.
MS EASTMAN: Is the issue not there that there has actually been consultation, but not just asking, but involving a First Nations network in the decision making?
MR WOOLCOTT: Yes.
MS EASTMAN: That's the point, isn't it?
MR WOOLCOTT: That is to do with the SES Disability Network, we are looking for advice from them about how we go ahead, because you are absolutely right, we want to develop our leadership cohort right across the board, whether they be people with disabilities, whether they are Indigenous or whether they be English speaking bureaucrats. But, as I say, we want to do this in consultation. As I say, the first meeting of this network will be December and they are part of that consultation process around leadership and management. The academy is very much focused on this as well.
MS EASTMAN: Sorry to interrupt. Is that an area again where, if we came back and spoke to you in 12 months or so, that you would be able to give us a little more detail then?
MR WOOLCOTT: I suspect I would.
MS EASTMAN: Mr Fennessy, I think there is a program in Victoria, is there not, to promote leadership for people with disability?
MR FENNESSY: There is, Counsel. I talked about the lifecycle approach, and that's not just about how to bring people, recruit onboard, and support, that is also about leadership development. Similar to Mr Woolcott, we have some specific leadership development programs, one for Indigenous Victorians, we are piloting one for culturally diverse women. So we will try to try different approaches to make sure we have a diverse leadership cohort in the Senior Executive. And we also do have --- I think this is important as well from leadership. We have a Commissioner in another Commission. My Deputy Commissioner in the Victorian Public Sector Commission is a person who identifies with disability. She also chairs our deputy Champions Roundtable, and these are the different approaches we are learning. But anything around disability goes through our Enablers Network which goes to the point that if we are trying to learn from different programs, it's always got to be anchored in, developing and driven by our Enablers Network. So we find that very effective, and we also find that it has to be at every level, and I briefly mentioned earlier, from interns to grads, to early career, mid career and executive.
MS EASTMAN: Ms Telfer, what is the situation in the Northern Territory? Do you have a program in relation to leadership and promotion, and what is the investment in such program in the territory if it exists?
MS TELFER: We don't have a specific program for people with disability. We are just about to launch our new Executive Leadership Development Program, but we don't have a specific program for people with disability. I would, though, point out that in our EmployAbility Strategy Midpoint Review that we did earlier this year, we found that people with disability felt there was limited career progression. In having a look at our People Matter Survey, we got 3 per cent of respondents with disability saying they are executive contract officers, which is good. We know that we have a lot more to do. One of the things we will be doing next year is that it will be compulsory for our recruitment panel people to undertake disability recruitment training and that's really critical to make sure that ---
MS EASTMAN: Ms Telfer, sorry to interrupt you. It's not the recruitment training, it's the leadership and promotion opportunities for people with disability. I take it by your answer there is nothing ---
MS TELFER: The short answer is we don't have any specific program for people with disability, but we do know it's something with the feedback we got back from the survey earlier this year, is that we know we need to do a lot more.
MS EASTMAN: All right. Can I ask each of you a short question. I hope the answer is "yes" or "no". If a person with disability leaves the public sector, do you keep statistics or data to track why people with disability leave the public sector?
MR WOOLCOTT: We do keep statistics on people with disability who on are our formal HR system's lead, yes to that. But I think it depends on the agency itself, as to whether they do exit interviews, and the reasons why they leave.
MS EASTMAN: Mr Fennessy.
MR FENNESSY: Counsel, to my knowledge we do exit interviews for staff. I don't I'm not aware that we do specific exit interviews for people with disability.
MS EASTMAN: Ms Telfer?
MS TELFER: We encourage agencies to do exit interviews with anyone who is leaving. I'm not aware of any specific exit interviews for people with disability.
MS EASTMAN: My final question before I ask the Commissioners if they have any questions is, with respect to each of your roles, do you have oversight and responsibility for dealing with any concerns, complaints or grievances by workers or employees with disability? Mr Woolcott?
MR WOOLCOTT: I have responsibility for overall integrity of the Australian Public Service and for Code of Conduct violations by agency heads, or under certain
circumstances I can be asked to look at employees within an agency. That's all set out in the Public Service Act if you are familiar with that.
In terms of complaints mechanisms within the Commonwealth, you have obviously the Fair Work Ombudsman, then you have the Australian Human Rights Commission ---
MS EASTMAN: That's not you. You don't have responsibility for dealing with complaints in ---
MR WOOLCOTT: Not for complaints. For Code of Conduct, and that can, of course, involve discrimination and harassment and bullying of people with disabilities. That is a clear violation of the Code of Conduct. So if it's raised as a Code of Conduct matter, then we have responsibility in terms of the overall standards, and there are some general guidelines and training around management of those issues, but not responsibility for the investigation of those issues, unless it involves an agency head or unless an agency head requests that I do so.
MS EASTMAN: Mr Fennessy?
MR FENNESSY: Counsel, I think consistent with one of my earlier answers, we do have some, or I do have some specific powers and functions with complaints. And then I can recommend to a head of agency how that complaint is managed. The thing we are interested in based on feedback from our Enablers Network is a better understanding and early reporting of employee experience. I'd mentioned earlier that the research we are doing, including with the Australian Network for Disability, is that that early reporting is very valuable so it doesn't get to a complaint level. So we haven't developed that yet. We are developing that right now and we are hoping to launch that early next year, and I think that along with more formal complaint mechanisms, that taps into the lived experience and the organisational learning for people with disability.
MS EASTMAN: Ms Telfer, you are a bit different, because one of your key responsibilities as the Commissioner is to deal with appeals and grievance reviews. So you do have a function, don't you, in relation to complaints?
MS TELFER: Yes, I do. I have extensive powers, and my office does manage grievances, complaints from employees, and we receive quite a number of those. We try to negotiate to get good outcomes. If I need to, I have the power to direct Chief Executive Officers of the particular agency to take or refrain from taking some specified actions in relation to that employee. I don't exercise those powers lightly, but I do exercise them where it's necessary.
MS EASTMAN: I haven't asked you all of the questions and covered all the topics that I wanted to address, but I know that they are matters covered in the material that you provided to the Royal Commission. So I will just check if any of the Commissioners have got any questions.
QUESTIONS BY THE COMMISSION
CHAIR: I will first ask Commissioner Galbally, do you have any questions of the panel?
COMMISSIONER GALBALLY: Thank you. I have questions in two areas and one is on data. The separation of issues of recruitment, retention, promotion, from disclosure and from adjustments. It seems that the target and the collection is mainly about recruitment. And my question is would it be valuable to add retention and promotion and then have disclosure as a separate target that we collect on because that's about safety in the workplace in part. And then adjustments, who is collecting information about what adjustments are requested and whether adjustments are provided? Because that seems a very important information that we need to collect?
MS EASTMAN: Commissioner, Galbally can I just check if you want that question directed to all three members of the panel?
COMMISSIONER GALBALLY: Yes. Or it could even be on notice because it's a big question. But just trying to get some real substance into the 7 per cent so that it makes sense and is separate from disclosure which is also a very important question. Perhaps on notice.
MS EASTMAN: I will just check with Mr Woolcott, Mr Fennessy and Ms Telfer whether they can answer that question now or take up your invitation of taking the question on notice.
MR WOOLCOTT: It's a very important question. We could obviously go into a lot of detail around that. I prefer to take it on notice so that we can really dive into the question.
MS EASTMAN: Mr Fennessy.
MR FENNESSY: Well, happy to take that on notice. And, Commissioner, the one comment I would add is that in my experience, particularly in a range of targets across government, it's important they evolve and become more sophisticated which I think goes to your question. So while in my experience we may initially have a recruitment target in a particular area of government, I think it is good over time, based on evidence, to put more detail around lifecycle targets including retention, promotion, et cetera. So that's a general answer. And happy to take that on notice more specifically.
MS EASTMAN: Ms Telfer?
MS TELFER: Yes. I could go on for quite some time but in the interests of making
sure the question can be answered I'm happy to take that on notice but to let you know we have lots of information we can provide.
MS EASTMAN: Commissioner Galbally, I think you had another question?
COMMISSIONER GALBALLY: My second question is about reporting and taking into account the decentralised model in Victoria and in the APS but still reporting and picking up Mr Graeme Innes' suggestion for annual traffic light reporting on that sort of data that should be collected so that we get a view of all departments. You know, we realise DSS is doing better than others and why they may be but we want to know that all departments on the work that they're doing and also on their plans to go forward. So, are there any views about traffic light reporting where in Parliament, which is publicly available for everyone to look at, on the topics of recruitment, retention, promotion, disclosure and adjustments and workplace adjustments?
MS EASTMAN: Ms Telfer.
MS TELFER: If you don't mind. I am required under my Act to produce a State of the Service Report which is tabled in the Northern Territory Parliament via my Minister. And every year we consider how we can best present the information and what information should be in the public domain. I have some legal responsibilities about the report in my Act. And again it's one of those that question that you asked specifically is one that I am considering how we can actually improve the reporting that we provide into the public domain.
MR WOOLCOTT: I'm happy to go next if you like, Counsel. Likewise, we also produce a State of Service Report which will be tabled in the Parliament on 30th of this month. It pulls together a lot of the data that we have available to us and goes into some detail around where the public service is tracking. We also make data available through our human resources mechanisms on a bi annual basis, and so that is very detailed. And then there is remuneration data which is also broken down in regard to people with disabilities as well, which is published on an annual basis.
Then, importantly, we have the census which of course is the anonymous survey which gives us a very good look at how people in the public service are feeling about issues, whether it be leadership, whether it be wellbeing, whether it be burnout, whether it be equipment and, of course, that can be broken down, as you've seen, in relation to people with disabilities and their attitudes to all these issues and how they compare to others.
And one of the initiatives that we took a couple of years ago was to make that data public in terms of aggregated data but also most agencies, it's not mandatory, but most agencies, almost all in fact do publish that data and that will come out again on about 30 November. So we do publish, we are very transparent, we look to be transparent.
Obviously data collection is something we can look at. I issue directions in relation
to data and that's something we can refine going forward. So very happy to think further through the data issues. But I absolutely understand you need to be able to measure things to judge their effectiveness and so data is critical.
COMMISSIONER GALBALLY: Yes. And my question had an element of shaming as well as giving bouquets to different departments for their employment practices.
MS TELFER: We publish our People Matter Survey not just for the sector but each for the agencies, whether they love us or hate us.
MR FENNESSY: Commissioner Galbally, if I could add a comment. Similar to the other two Commissioners, we publish State of Public Service data annually. Ours will come out at the end of this year and we have just published our latest People Matter data. I think shaming is important. We've seen WGEA, the Workplace Gender Equality Agency used very effectively for gender statistics. We now have it throughout Victoria for the Gender Equality Act so there are learnings from other similar reports, I believe.
Separately, I do think there are opportunities through the National Disability Employment Working Group about how we collect data and share our own insights better and it's not I've also started discussions with the universities how we are linking better research particularly network entities like the Australia New Zealand School of Government. If this is an issue every jurisdiction is facing, how do we take a collective approach to invest around better data collection, sharing and best practice for disability in particular. Thanks, Commissioner.
CHAIR: I think Commissioner Ryan has some questions which are capable of being answered on notice. I will ask Commissioner Ryan.
COMMISSIONER RYAN: All my questions are to Mr Woolcott and they are not likely to be information that you have got with you but I think they are relevant to the Commission's inquiries. I would like if you can give the Commission some idea about the impact of contracting out and labour hire in the APS and whether that has any capacity to either water down or make the target more effective or there might be opportunities for how consultants and contractors are hired in the procurement processes, as to whether that doesn't provide some opportunities to increase disability employment.
The second thing I would be interested in is you mentioned you weren't able to give any data in regard to RecruitAbility in terms of the outcomes people achieved. Yesterday in evidence to the Commission, the ATO did give us some data. They indicated they had acquired it by making interrogations of their human resources database. I was wondering whether any other organisations, APS agencies might be able to just arrange others so we can make some sort of comparison of that.
Finally, it has been raised to the Commission the idea of, if you like, quotas or
targets. And relevant to that is affirmative action processes. I'm aware of the fact that you probably wanted to talk about one relating to the recruitment of people with autism but I was wondering, given the potential vacancies and the impact of the report by David Thodey about buying in more expertise into the public sector, are there any legal or other barriers to a more aggressive affirmative action approach of recruiting of people with disabilities into the public sector. Because that seems to be a very viable means of increasing the number of people with disabilities in the APS. None of those things are probably things you brought information with you. So I entirely accept they would all need to go on notice.
CHAIR: Mr Woolcott, you are happy to take those on notice? What we will do is arrange between Counsel to record, compile the questions that have been taken on notice and provide for answers to be given in due course.
In the interests of time I had a few questions but I will limit myself. I did want to ask you, Mr Woolcott, and it relates to a question Commissioner Galbally asked and perhaps you want to take this on notice as well. The strategy for 2020 2025 says that APS will require more than 1600 new employees with disability each year to join the APS over the life of the strategy. This takes into account the number of people with disability who leave each year and those who acquire or choose to share their disability status during employment.
Questions were asked by Ms Eastman about, I suppose, the risk that the 4 to 7 per cent increase of people with disability might turn out to be more of disclosure rather than actual recruitment. My question is how are you going to check that you are getting 1600 new people each year. If you wouldn't mind taking that on notice and deal with that with your answers to Commissioner Galbally's questions.
I did have one actual comment about the strategy. I notice that the only case study in the strategy is under the heading of the Attorney General's Department which tells us a great success has been the Disability Royal Commission assisted technology process. That's rather flattering but I was rather under the apprehension that we were an independent organisation and not part of the Attorney General's Department. That might be conveyed. Thank you.
MR WOOLCOTT: Duly noted, Chair.
CHAIR: Perhaps not the only example I've come across in this connection. In any event, I assume that nobody has any questions to ask of the panel, in which case I thank you very much. I should say that we particularly appreciate the fact that each of you as a Commissioner has come along yourself and not sent somebody who is less senior. I am very grateful and I'm sure my colleagues are very grateful for that. We appreciate that assistance and we thank you for the contributions you have made. I apologise for the length of the time you've been with us but it has been a very useful session. Thank you very much.
MR WOOLCOTT: Thank you Chair.
MR FENNESSY: Thank you Chair, thank you Commissioners, thank you Senior Counsel.
MS TELFER: Thank you.
THE WITNESSES WITHDREW
CHAIR: Ms Eastman, if you are planning to tender some documents
MS EASTMAN: I am.
CHAIR: Can we do that when we resume and can I suggest from now on we do that simply through the documents and I'll initial it and you can distribute it to the parties?
MS EASTMAN: Yes, I'm very happy to do that and we've provided you with the document.
CHAIR: Rather than go through the recital.
MS EASTMAN: We would be delighted to take that approach. I think we had, for the people following the hearing schedule, an hour for the lunch adjournment today, but could we perhaps keep it at 45 minutes?
CHAIR: I was desperately hoping for an hour in order to have the chance to breathe in some fresh air.
MS EASTMAN: We can make it an hour and I'm looking at Ms Bennett and Ms Dowsett because I'm encroaching on their time, but I think an hour is fine.
CHAIR: We will compromise and we will resume at 1.30.
MS EASTMAN: Thank you.
ADJOURNED [12.38 PM]
RESUMED [1.29 PM]
CHAIR: Yes. Ms Bennett.
MS BENNETT: Thank you, Chair. This afternoon, Commissioners, we will be
taking some evidence from three private sector employers. They are Medibank, Telstra and Australia Post. And I might ask if the representatives of those organisations could be brought into the virtual hearing room.
CHAIR: I think we have everybody on-screen.
MS BENNETT: It appears there might be an appearance.
CHAIR: Is there an additional appearance for any of the parties?
MR TAMVAKALOGOS: Hello, Chair, It's Michael Tamvakologos from Seyfarth Shaw, I appear for Telstra.
CHAIR: We have two familiar faces.
Thank you for giving evidence to the Commission today. In order to explain where we are, Commissioner Galbally is in Melbourne. I am in the Sydney hearing room with Commissioner Ryan on my right, and Ms Bennett of Counsel will be asking you of questions. She is also on the Sydney hearing room. I will now ask her to ask you some questions.
MS BRIDGETTE (SHELLEY) ABRAMS, CALLED
MS ALEXANDRA BADENOCH, CALLED
MS SUSAN DAVIES, CALLED
EXAMINATION BY MS BENNETT
MS BENNETT: Thank you, Commissioner. Before I start, Commissioners, this panel arises out of much of the evidence received by this Royal Commission which paints a fairly consistent picture and that is that the figures for employment for people with a disability are not where anyone wants to see them. As the evidence of Mr Innes on Monday made clear, there is an issue of culture and inclusion that is central to this issue. The purpose of this panel, Commissioners, is to explore that question with three large Australian employers who have made efforts in different respects to address that issue. If I can ask in order that the witnesses identify themselves.
Ms Abrams, would you identify yourself.
MS ABRAMS: Yes. Hello.
MS BENNETT: Could you tell the Commissioners your name and role.
MS ABRAMS: Sorry, first time presenter today. Yes, I'm Shelley Abrams and I am presenting today from Medibank. I am a senior executive of talent, culture and capability.
MS BENNETT: Ms Abrams, you have made two statements in relation to this Commission, is that right?
MS ABRAMS: That's right.
MS BENNETT: Are the statements true and correct?
MS ABRAMS: That's correct.
MS BENNETT: Ms Badenoch, you appeared on Tuesday. Could you just remind the Commissioners of your name and role?
MS BADENOCH: I'm Alex Badenoch and I am in the role of Group Executive, Transformation, Communication and People at Telstra.
MS BENNETT: Ms Davies, could you please tell the Commissioners, albeit that you appeared yesterday, remind the Commissioners of your name and role at Australia Post.
MS DAVIES: I'm Susan Davies and I'm the Executive General Manager of People & Culture at Australia Post.
MS BENNETT: Ms Davies, I would like to start with you, just to clarify a few matters arising from yesterday's evidence around the number of people with disability at Australia Post. I want to make sure I understand your evidence about that. I understand Australia Post employs roughly 37,500 people. Is that roughly correct?
MS DAVIES: That's correct.
MS BENNETT: Of those, I understand that your HR system tells you that 1,664 people identify themselves as having a disability; is that right?
MS DAVIES: That's correct.
MS BENNETT: Yesterday you told us that there were an additional 771 people who identified themselves as having a disability through the engagement survey. So the way that's recorded in your statement is it simply says that the survey recorded 771. I just wanted to be clear, at the end of that survey, is the number that was identified 2,235 people with a disability?
MS DAVIES: Yes. That's correct.
MS BENNETT: You then made the assumption that 1,464 of those people were those that are recorded in your HR system, and that 771 have identified themselves anonymously in addition; is that correct?
MS DAVIES: No, that's not correct. So we have a number of ways that people can identify in different diversity groups. So one can be one is in the application, which is the vast majority of the 1400. We then ---
MS BENNETT: Can I pause there, Ms Davies. That is the application for a job at Australia Post, is that right?
MS DAVIES: Or people can actually go online at any time during their employment, because obviously people may join Australia Post and with no disability, and over the period of the 20, 30 years with us, they then form a disability so they are able to go online and register at any stage.
Then we do an engagement survey every year and people then nominate on the engagement form, and what we ask them is that can we update our records --- so of the people who nominate on the survey, can we update our records in the system. We brought them out on the form on the submission, because it was the way the questions looked to be asked in the submission.
MS BENNETT: Okay. So the survey was not an anonymous survey?
MS DAVIES: The survey, it's anonymous but we do have an ID against --- of the survey, of the employment survey and if people do identify, it asks the next question, it's online and it says, "Are we able to update our records?" So yes.
MS BENNETT: Thank you for clarifying. You said that people specify their disability at the point of application. That's available to them?
MS DAVIES: Yes.
MS BENNETT: Yes, and then that forms part of your system, you don't make them disclose that again later on; that carries through, they don't have to disclose again, they can choose to if they haven't disclosed at the time of application; is that right?
MS DAVIES: That's correct.
MS BENNETT: All right. Now, you tell us in your statement, Ms Davies, that you have a moderately declining participation rate for people with a disability; is that right?
MS DAVIES: That's right, yes.
MS BENNETT: Now, on the same page in your statement you tell us that this is occurring ---
CHAIR: I'm sorry, which statement are we talking about?
MS BENNETT: This is Ms Davies's statement and it appears at page 2 in response to question 4. Under the heading "moderately declining participation rate".
CHAIR: Yes. Go ahead.
MS BENNETT: Now, Ms Davies, you tell us that has occurred at the same time that there has been an increase in the number of applicants identifying as having a disability; is that right?
MS DAVIES: Yes, that's correct.
MS BENNETT: Okay. So is one explanation for that evidence that more people with a disability are applying and fewer are getting through?
MS DAVIES: No, that's not correct. First of all, the declaration of any disability, it's the individual who volunteers that. What I think that we are seeing, if you look at the we are reporting that percentage at any given time and that's the number that we've reported in the annual report. There are obviously people joining the organisation and leaving the organisation all the time. If you look at the rate of recruitment at this moment in time, ie, you know looking at the statistics in our current recruitment, we are recruiting at a rate of 6 per cent in disability. This is basically a static number at any given time.
MS BENNETT: It's just that, Ms Davies, it appears that recruitment isn't flowing through to your actual participation rate. Is that a possible explanation for the data?
MS DAVIES: Well, it depends what the attrition looks like, and I think, you know, the other thing, it's the disclosure issue, at the end of the day. I think at the end of the day, whether people declare or disclose or not is obviously a personal choice ---
MS BENNETT: Ms Davies, I'm sorry to interrupt. I would like to shift the focus away from people with disability and onto Australia Post, and I would like to understand, one of the explanations for this data --- I'm not saying it's necessarily the only explanation, but it's one explanation --- that people with disability are not retaining their employment with Australia Post.
MS DAVIES: No, I don't believe that that is the case.
MS BENNETT: No, I accept you don't believe that that's the case. I'm asking a different question. I'm asking if that is one possibility for the data that you provide in your statement, one possible explanation for it.
MS DAVIES: I think it's a hard question to answer "yes" or "no" categorically, Counsel. I think what I do say in the statement is that I think that if you were providing an environment where people may be don't feel, because we are accommodating in the environment, people don't feel as much that they need to disclose but certainly, say if I look at the current rates I agree, people are leaving and joining the organisation all the time. You know, but I can't say for sure that we are losing more people with disability.
MS BENNETT: Has any work been carried out to identify whether that's an explanation or the explanation for this data?
MS DAVIES: No. I don't believe we've carried that work out.
MS BENNETT: Could I just suggest to you, Ms Davies, that you're approaching these figures from a perspective that people will feel safe to disclose their disability, or that people feel safe with their disability in your organisation, and what if that's not true? Wouldn't the data tell a different story, looked at through a different lens?
MS DAVIES: I don't think it's there are two parts to this. It's the feeling safe to disclose and I think there's a case to be argued of recognising --- you know, you as an individual have a disability. I think there are numerous reasons in answer to that question, Counsel.
MS BENNETT: I guess the issue is that if you assume that the reason that the numbers are changing and decreasing is because people are feeling comfortable in the environment, you will read the data in one way; do you think that's fair?
MS DAVIES: No, I don't, and I would never make that assumption. I think it would be wrong to make that assumption and I think with a workforce as large as ours, we can never make any assumptions on these numbers.
MS BENNETT: Okay. So you're open to the proposition that these numbers might be telling you something about Australia Post's culture as it relates to the retention of people with a disability. Are you open to that proposition?
MS DAVIES: Yes.
MS BENNETT: And do you intend to carry out any work to identify whether or not that's the reason for these numbers?
MS DAVIES: Sorry, Counsel, can you ask that question?
MS BENNETT: I think your evidence is that you have not undertaken any work to identify what the reason is that you have a moderately declining participation rate in the face of an increasing number of applicants. And I'm asking you if there is any intention to undertake any work to address that question.
MS DAVIES: We can certainly do that, Counsel, and it certainly seems like a sensible thing to do.
MS BENNETT: Thank you, Ms Davies.
Now, Ms Badenoch, I would just like to turn to you. As I understand from your evidence yesterday, Telstra presently employs around 25,972 people. Is that about right?
MS BADENOCH: Approximately, yes.
MS BENNETT: As at, I think, now, your system shows 256 of those people identify themselves on your HR system as having a disability; is that right?
MS BADENOCH: That's correct.
MS BENNETT: That is roughly 1.2 per cent of your workforce, I think we've established that.
MS BADENOCH: That's correct.
MS BENNETT: I understand from your statement that that rate of 1.2 per cent has been roughly static for quite some time; can you tell us for how long?
MS BADENOCH: Sorry, just give me one moment. I think it has been roughly static since 2012.
MS BENNETT: You have had a Disability Action Plan in place since about 1996?
MS BADENOCH: That's correct.
MS BENNETT: So for nearly a decade, is it fair to say for nearly a decade you have had Disability Action Plans, inclusion plans that have had no impact on the level of disability retention or recruitment at Telstra?
MS BADENOCH: I think what's fair to say is that it has had no impact on the disclosed numbers. I'm not sure we can say absolutely it has had no impact because we actually don't know whether the numbers have increased or not, given voluntary disclosure. But based on disclosed number, we have not made the inroads that we would want to in terms of the percentage and number of people we employ with a disability. That is absolutely fair to say.
MS BENNETT: At what point do you say, Ms Badenoch, that what you're trying isn't working?
MS BADENOCH: I think we actually have already recognised that we needed to
make some changes, and have looked at a number of actions in the last year or two to try and stimulate some different outcomes. So I say we have already identified that we need to make changes to our programs and our approach to shift the numbers more significantly. And that includes a shift in targets to our graduate recruitment, it includes some specialist recruitment programs such as our neurodiversity recruitment program. It includes the establishment of an employer representative group for employees with a disability who can work very actively with us on shifting this dial. So I think that's an acknowledgement and a recognition that we have, is when something is not working, you've got to make change.
MS BENNETT: And you recognise that at what point into the 10 years?
MS BADENOCH: I would say we've tried multiple things over the 10 years. I have not been there for the full period of the 10 years, but certainly in the last two years we have made a number of significant changes to address the progress we don't feel we're making in this space.
MS BENNETT: Is that reflected can I date this epiphany from Telstra from the provision of the Intopia report you have attached to your statement. For the benefit of the Commissioners, that is a document at Tab 105 of Volume B that I'm not going to at the moment.
MS BADENOCH: I think it precedes that, Counsel, because we actually obviously undertook the report to get some insights based on the fact that we felt there was more or something different we needed to do, and I think actually it's reflective of a broader cultural intent around Diversity & Inclusion. The fact you don't see the representation or disclosure. Because it could be either. It's important to explore and understand your data, understand what's working, what's in the and what additional changes you could make. So that report was very helpful and insightful and gave us a number of recommendations which we've taken action on.
MS BENNETT: We will return to that report shortly.
Ms Abrams, I would like to turn to you. You adopted a new Disability Inclusion Action Plan in about June 2018, and of course when I say you, I mean Medibank adopted that Disability Inclusion Plan. Now, since that time you've kept track of disability inclusion, and as I read your statement, your lowest level of disability representation since 2017 was this year. Is that right?
MS ABRAMS: That's correct.
MS BENNETT: And was it 4 per cent?
MS ABRAMS: Yes, correct.
MS BENNETT: Is it fair to say that your 2018 plan is having limited impact in terms of the raw numbers?
MS ABRAMS: If you're looking surely at disclosure then, yes, you could take that. However, we look at a range of other metrics just to see how we are tracking around that. For example, when we look at our engagement survey, those who have identified as having a disability have equal to --- engagement for those that don't. So I think it's really important that we are looking not just at that figure in isolation, but some of the other metrics that would suggest that we are on the right track.
So, for example, we've got very active D&I working groups, and we do ask a range of questions around inclusion in our survey that go to all employees and we track how we're going against those ---
MS BENNETT: Can I ask you, just interrupt you for a moment to ask you about that survey. I think I understand from your statement that that survey identified 118 people --- I should say 118 people anonymously identified themselves in that survey as having a disability. Is that right?
MS ABRAMS: That's right.
MS BENNETT: And that's one of the other data points you're pointing to, say that you are doing something right?
MS ABRAMS: We are making steps to move in the right direction, absolutely.
MS BENNETT: And that compares to the 18 people who identified themselves on your HR system, is that right?
MS ABRAMS: Correct. Yes.
MS BENNETT: I just want to suggest to you, again, there's a way of understanding these figures. I want to suggest to you that one way of understanding those figures is that there are 100 people not willing to tell you openly that they have a disability. Is that one way of understanding those figures?
MS ABRAMS: Obviously that is one way, but I think there is context around that. So, our HR system is relatively new. Our previous system did not have the functionality to report on disability. When we implemented our new system, we transitioned a lot of the data over from the previous system. At no point have we proactively gone out and asked employees to fill that. There isn't necessarily a requirement for them to do so. So, we feel quite comfortable with the data that we have; we're getting from our survey, to understand what people's experiences are at Medibank.
MS BENNETT: But again, it's this question of when did you carry out the survey?
MS ABRAMS: We carry out the survey annually, so every March time.
MS BENNETT: Your new system came into effect in what year?
MS ABRAMS: I think about 2017.
MS BENNETT: So one way of understanding these figures is that everything it's showing a positive for Medibank, I understand that. I understand the way you put that. What I want to suggest to you, another way, is it demonstrates a reluctance from people with disability to trust you with that information, and I want to understand if you are open to that reading of the data.
MS ABRAMS: We are always open to that, absolutely. Hopefully I'm pointing out that we are looking to other data to suggest whether that is indeed the case. So I ---
MS BENNETT: I guess what I'm taking from your answers is that you've excluded that possibility, but is that not the case, have you considered that possibility and decided that that's not the best reading of the data?
MS ABRAMS: We've absolutely considered that possibility, but as I said, it's in context with a lot of other data that we look at to understand our workforce. Certainly we do consider that when we're looking at the full picture.
MS BENNETT: So I would like to – Many of these questions are looking at questions around what the attitudes are of the senior members of an organisation, how that might inform things.
I would like to understand, Ms Badenoch, looking first to you, I assume you have a strong understanding of what we mean by the term "unconscious bias". Can you tell the Commissioners what you understand by that?
MS BADENOCH: So unconscious bias is where we have an inherent sort of bias against or make assumptions about people, things or situations just based on our pre wired experiences, a whole range of factors that might make us having to make an assumption without any real fact base or evidence of that assumption.
MS BENNETT: You would accept that commonly --- or there is a risk that unconscious bias will play a part in your decision making when it comes to dealing with people with disability; is that fair?
MS BADENOCH: Yes, I would.
MS BENNETT: Does anyone else on the panel disagree with either proposition?
MS ABRAMS: No.
MS BENNETT: Ms Davies, do I take did you accept that as well?
MS DAVIES: Absolutely.
MS BENNETT: Would you accept, Ms Davies, that it's a pre condition of cultural change that you raise up and address that unconscious bias before you do that?
MS DAVIES: Absolutely.
MS BENNETT: What's the key way that you would say Australia Post is taking that step?
MS DAVIES: I think this is a journey for all organisations, and one of the key things for Australia Post is to be informed on these things, and you need a representative group of individuals who have lived experiences of disability in life and in the workforce. And so I think, a few things. You know, culture is everything and I think it starts with values, it starts with, you know, laying down firm foundations of, you know, what values and what culture you want to have in your organisation.
I think I said yesterday in my evidence, that comes from the top. It's got to start at the top, it's got to start with the board. It's got to start with the exec team and go through the organisation.
MS BENNETT: I would like to pause you there. Because I think you give us some evidence at paragraph 14 of your statement about leadership representation for people with disability in Australia Post. Do you have that in front of you? I think you tell us at paragraph 14 that there are roles, the levels within Australia Post are numbered 1, 2, 3, and there are subcategories in 3. Then the senior executives roles are A, B, C. Is that right?
MS DAVIES: Sorry, Counsel, just trying to ---
MS BENNETT: Paragraph 14, I think.
CHAIR: Where do we get A, B, C from?
MS BENNETT: I withdraw that. We will go on.
Do you have any data around the senior I'm sorry, it's the wrong numbering for the document.
Do you have any data around the senior levels of representation for people in senior levels of your organisation with disability? I think you tell us at page 2, paragraph (d), that the overall leadership representation for people with disability; does that look right? You say there is a higher level of representation people at the supervisor level that identify as having a disability. Is that right?
MS DAVIES: Yes, that's correct.
MS BENNETT: Yes, do you know what that level is?
MS DAVIES: Do I know what the level of representation is?
MS BENNETT: Yes.
MS DAVIES: Yes. I can't give you that off the top of my head, but we would know what that represents.
MS BENNETT: I see. You say the overall leadership representation of people with disability is commensurate with the population. Does that mean one in five?
MS DAVIES: No. I think what we're trying to put in there ---
MS BENNETT: Sorry, I will just ask you to ---
MS DAVIES: Sorry.
MS BENNETT: I will ask those present in the room with you not to --- (overspeaking) ---
MS DAVIES: Yeah. I think the representation would be commensurate with the number of people that we have in leadership, so when we're talking from supervisor level down, it would be commensurate with the number of people who we have who have actually declared disability. So the ones ---
MS BENNETT: Can I just understand this. The representation of people with a disability in the community is one in five. Is that your understanding?
MS DAVIES: Yes, it is.
MS BENNETT: And you say the overall leadership representation of people with disability is commensurate with the population. Is that one in five?
MS DAVIES: With our population, yes. Not one in five. It's not one in five, it's with the population within the organisation. What I'm talking about is the population that have disclosed.
MS BENNETT: So at its highest, 5 per cent?
MS DAVIES: Yes.
CHAIR: I'm not sure I understand what you mean by "commensurate with the population". Could you explain that, please?
MS DAVIES: So --- and again, forgive me if I'm not explaining this correctly, but what we're saying there is the overall leadership representation of the population of people who have disclosed, if the representation of leadership in the whole
organisation is 5 per cent, then we're saying it's commensurate with the actual overall population. Does that make sense?
MS BENNETT: No. I'm going to ask you ---
CHAIR: I'm sorry, it doesn't make sense. Are you trying to say that the proportion of the highest level of the organisation of people with disability is the same as it is at other levels of the organisation?
MS DAVIES: Yes. In simple terms, that would be what we're saying. So what we're saying is, there's 2,000 people who have disclosed; if we look at the roles of the 2,000 people, the level of supervisor roles would be commensurate with that overall population. So what we're saying is that people get the opportunity for supervisory roles within that population. That's what the data tells us from who has disclosed.
CHAIR: Ms Bennett, I've been asked if we can adjourn for few minutes. There is a particular need to do so. We will just adjourn for a few minutes and return. I apologise for the inconvenience.
ADJOURNED [1.59 PM]
RESUMED [2.05 PM]
CHAIR: Thank you very much. I'm sorry for the slight delay. I will now ask Ms Bennett to resume her questioning.
MS BENNETT: Thank you, Chair.
Ms Davies, I think you just finished telling us the level of disability representation at the senior levels of Australia Post, and I don't mean to put you on the spot about that, so perhaps we can just ask to clarify that point on notice because I think I've potentially confused the situation, so let's just take that one on notice so we can clean it up afterwards. But I would be interested to know, because I think that your point is a very strong one, and it was echoed by Mr Innes earlier in the week, "you can't be what you can't see".
Ms Badenoch, I wanted to ask you about this, and I think it was your statement that I was referring to shows us the table, at paragraph 14; is that right?
MS BADENOCH: That's correct.
MS BENNETT: So let me ask you, that table starts at 1, 2 and 3, and it shows the
leadership levels but A, B and C are the higher, more senior levels?
MS BADENOCH: That's correct.
MS BENNETT: Perhaps we can show that table so that it's available. So these are the levels ---
CHAIR: I have to tell you that my version of this statement has a different paragraph 14 with levels of 1, 2, 3, then 3i ---
MS BENNETT: No, that's correct. It's bands A, B and C are not referred to in the table. They are referred to in the preceding paragraph of the statement.
Ms Badenoch, I think what the Chair is getting at ---
CHAIR: I think the Chair is getting that he is looking at the wrong paragraph, probably.
MS BENNETT: No, no, that table could have on top of 1, 2 and 3, an A, B and C, and they would show zeros. Is that right?
MS BADENOCH: That's correct.
MS BENNETT: What are A, B and C levels?
MS BADENOCH: They are effectively what we would term our Executive Management, which includes the CEO, the CEO's direct reports, and generally but not exclusively the next layer of the organisation, so the direct reports to the executive team.
MS BENNETT: I understand that Telstra, and we will come in a moment to targets, and I understand that there are targets in relation to recruitment, is that right, at Telstra?
MS BADENOCH: There are some targets in relation specifically to graduate recruitment in this area.
MS BENNETT: Are there targets connected with retention of those people?
MS BADENOCH: There aren't targets associated with retention.
MS BENNETT: Are there targets in relation to moving people with disability up into these more senior bands?
MS BADENOCH: There are not formalised targets, no.
MS BENNETT: Okay. You say formalised targets. Are there informal targets?
MS BADENOCH: We report on, and it's included in part of all of the Senior Management Team's every year, is reporting on, actually, representation of a range of diversity groups within their teams. So it is considered part of their performance as to whether or not they are making inroads or showing that they are demonstrating working actively on Diversity & Inclusion.
MS BENNETT: Is that related to the figures?
MS BADENOCH: It relates to figures. It looks at reported numbers within people's teams, and specifically we have targets set around female representation, Indigenous employees and people with a disability.
MS BENNETT: Yes, and I wanted to ask you about that because in your supplementary statement you provide us with the 2021 Corporate Governance Statement. I won't take the Commissioners to it directly but at paragraph at page 19 you say:
As we transform at Telstra, we are taking a holistic view of diversity beyond measuring demographics like age, gender, ethnicity by continuing to prioritise fairness.
Is there a move away from counting away from the figures?
MS BADENOCH: I think we don't emphasise it as our primary focus. Our primary focus would be looking at what sort of culture are we creating and do we believe we are creating an inclusive and diverse culture in our organisation. But we still count and we still report on numbers but we look at how, for example, our employees feel about the environment they work in, so like a number of the other people I've referred to, we look at our engagement survey results and whether people feel like we create an exclusive environment. We look at engagement based on different demographics and whether we see a differential in engagement based on different demographics, which we should investigate or be concerned about. So we look at a range of factors rather than purely the numbers.
MS BENNETT: I see. So that's not so much moving away from the numbers as adding in other data points. Is that fair?
MS BADENOCH: And equally, probably treating them with equal care. Because at times you can count numbers but not necessarily always get behind some of the softer or less sort of countable elements of culture. So we just try make sure that there is equal emphasis on culture as there is on our reporting.
MS BENNETT: We might return to that in a moment, but I might ask you, Ms Abrams, about your organisation's representation of people with disability at senior levels. What can you tell the Royal Commission about that?
MS ABRAMS: Yes. So we have, like Telstra and Australia Post, bands 1 to 3 which are our Senior Executives. We have about 53 people who sit in that pool, and we don't have anyone within that pool that has identified knowingly or disclosed a disability. But I think that is commensurate with the size of that pool. So that's the information about our senior leaders and disclosure.
MS BENNETT: So nobody in the senior leadership has disclosed that they have a disability; is that right?
MS ABRAMS: Not in the HR system. As far as the engagement survey goes, due to the anonymity of it, we can only go down to groups of five. So we would have needed five people in that group to identify as having a disability for us to know the number. So unfortunately we don't have any data that suggests that.
MS BENNETT: I see. Thank you. Do you have any specific programs in place to create a pipeline of people who take senior levels within Medibank?
MS ABRAMS: We have, like Telstra, we have been working with the Australian Network on Disability and Vision Australia for early career pipeline programs, and we found those to be very successful when we've brought in interns and done mentoring that has translated to work, but we don't have any formal programs written for those with a disability.
MS BENNETT: I do want to ask you something about a document that caused me something of a concern, and that was your Diversity & Inclusion policy which is Tab 64 of the bundle, for the benefit of the Commissioners. I'm sorry, Tab 64. And this is your "Diversity and Inclusion policy"?
MS ABRAMS: Yes, correct.
MS BENNETT: It's a November 2020 document. And as I understand this is a document that sets out Medibank's Diversity Inclusion Policy and you can see in the third paragraph on the first page it says:
The purpose is to support and facilitate an exclusive environment that embraces all that makes us different .....
It lists a number of things: gender, marital or family status, sexual orientation, gender identity, age, disabilities, ethnicity, nationality, religious beliefs, cultural beliefs. You see the list goes for a while there.
So the purpose of this document as I understand it is to identify all the attributes that fall within your aspirations for Diversity & Inclusion; is that fair?
MS ABRAMS: That's fair.
MS BENNETT: Then at 2.2 you talk specifically about board and senior executive
diversity. It says there:
At Medibank, the background of diversity, knowledge, skills ..... we take into account the development of succession plans and appointment processes for our Board.
And then it goes on to list the attributes that will be considered for that pipeline. It says:
In line with Medibank's commitment to inclusion, consideration of factors including gender, ethnicity, nationality, sexual orientation, cultural background, age and experience will be given to appointments of senior executives and Board positions.
Now my question, Ms Abrams, is why is disability excluded from that list?
MS ABRAMS: I honestly couldn't tell you and it's something that we will absolutely look into.
MS BENNETT: It shouldn't be, should it?
MS ABRAMS: No, it shouldn't.
MS BENNETT: Because it's important that people with disability can see how far they can rise in your organisation, that's fair?
MS ABRAMS: Correct. Absolutely.
MS BENNETT: Who is the person who ultimately holds this responsibility for that policy?
MS ABRAMS: The board sign off this policy and ultimately it sits within the People & Culture team.
MS BENNETT: And who heads the People & Culture team?
MS ABRAMS: Kylie Bishop.
MS BENNETT: Is that the person who is responsible in the organisation for increasing disability representation at Medibank?
MS ABRAMS: As senior leaders, we are all responsible. I look after the D&I strategy, and ultimately I work with the board and Kylie to have those measurable objectives signed off, but we don't see the meetings of those represents those groups sitting solely with People & Culture. We actually see that being the responsibility of all of our senior executives at Medibank.
MS BENNETT: I'm just concerned about --- and we are going to talk a little bit in a moment about accountability, would you agree with me, it's a reasonably consistent theme that in order to get outcomes, you need someone who is responsible for delivering that outcome? Isn't that right?
MS ABRAMS: It's important to be clear on who is ultimately, yeah, going to be responsible for that, but there may be more than one party involved in making that a reality.
MS BENNETT: So how many people do you say are responsible for increasing the pipeline of people with disability into the senior ranks at Medibank?
MS ABRAMS: I think it sits within the hands of a number of people. I think it sits within the hands of my team. We look after the talent pipelines at Medibank. I think it sits in the hands of our talent acquisition team, and in the hands of our senior executives who are making the hiring decisions.
MS BENNETT: So that's about five people?
MS ABRAMS: I guess give or take, sure.
MS BENNETT: Do they know, they have that responsibility?
MS ABRAMS: Yes. People are aware, and we've just gone through the process now of developing our second Accessibility Inclusion Plan and part of that consultation has been working directly with the senior leadership team to get clarity on who was responsible for what, and what are people signing up for. So it has actually been an incredibly consultative process. I think as part of going through the second round of the Accessibility Inclusion Plan, we've become more clear on who is responsible for what and who is going to be owning some of these actions.
MS BENNETT: Okay. Thank you.
CHAIR: Ms Abrams, I wonder if you wouldn't mind speaking a little more slowly for us, because we do have to record what is happening and it needs to be translated into Auslan. Thank you.
MS ABRAMS: Thanks. No problem.
MS BENNETT: Thanks, Chair.
Ms Davies, I wanted to ask you about targets for recruiting and promoting employees with a disability. Now, as I understand it, your evidence yesterday well, can you tell the Royal Commission, do you presently have targets for the recruitment and retention of people with disability into Australia Post?
MS DAVIES: We report the numbers, but for the first year we've not got specific
MS BENNETT: Yes. So no. And did you have targets in the past?
MS DAVIES: Yes, we did.
MS BENNETT: When did you have targets --- when did you stop having targets, let me ask that one?
MS DAVIES: Last year.
MS BENNETT: So in 2020?
MS DAVIES: Yes.
MS BENNETT: What was your target at the time you stopped?
MS DAVIES: We had a we actually reached, or slightly exceeded, our target when we stopped.
MS BENNETT: Sorry, what was your target?
MS DAVIES: That would have been the 5 per cent.
MS BENNETT: Okay. So how did you arrive at a target of 5 per cent?
MS DAVIES: Over a number of years of a journey, and I think targets --- and I really want to make this point, I think targets absolutely have a part in every organisation's journey and, we report on all of our diversity groups. We obviously report on our diversity numbers within the organisation. But I think that targets, you know, have a really important part of your journey, and I think what is more important and what actually starts to grow those numbers more is culture and leadership. And our last representation in the board report, we were at 5.9 per cent of our disclosed people with disability. If I look at the current recruitment rates, we are averaging 6 per cent.
Now, just because we don't have specific targets, that doesn't mean we do not monitor these, we monitor them weekly, and we always will monitor them because it's important and we want to grow those. We want to grow those numbers ---
MS BENNETT: Can I pause there. You want to grow the numbers of people with disability, and presumably you wanted to grow them last year when you decided to stop having a target. I'm not quite clear how removing the target is going to assist you to increase your numbers. Could you explain that? Was it part of a strategy to increase your recruitment of people with disability?
MS DAVIES: I will attempt to do that, Counsel. I think the strong belief, I think
you know, you get what you inspect and not what you expect. And for a number of years we've had targets for people with disability in the organisation and, you know, our numbers are what they are at 5.9 per cent. I think we made a decision to change the culture of our organisation or to build a culture of Diversity & Inclusion and people, you know, feeling that they can absolutely disclose disability within our organisation without any fear of retribution or not progressing within the organisation.
I know it might sound controversial to removing a target, but I'm at pains to highlight we have not removed the reporting of these numbers. And I can report on a weekly basis what our recruitment rate looks like. But I would rather the leadership of our organisation and the people in our organisation focus on creating a good experience for people coming into our organisation, a good onboarding experience, a good recruitment process and a good engagement experience and development experience for people with disability than to be focused on a number. And that was the decision we made.
CHAIR: Who actually made the decision?
MS DAVIES: As the Executive General Manager of People & Culture I would have made that decision ultimately but, you know, I would make that decision in conjunction with the CEO.
MS BENNETT: Was it because you were happy with 5 per cent?
MS DAVIES: No.
CHAIR: Did you prepare a document that explains that decision?
MS DAVIES: No, it wasn't that --- I haven't got a document that explains that decision. Again, I'm at pains to say that ---
CHAIR: I know what you are at pains to do, but I only asked you whether there's a document that records the decision.
MS DAVIES: No, I don't. No.
MS BENNETT: All right. I would like to move to talk to the three of you about the kind of disability support organisations that you support within your respective companies.
Ms Abrams, starting with you, can you tell the Royal Commission about the internal networks that you have to support people with disability?
MS ABRAMS: Yes, certainly. So until recently we had a number of Diversity & Inclusion working groups, and they were sort of centred around the diversity cohort they were representing, so accessibility, gender, LGBTI. What we found with that
work was that they weren't working necessarily together, and that there was an opportunity for a lot for intersectionality. So as of this year we've reorganised ourselves so that we're not working in the groups of the diversity cohort but rather that we're organised around the outcome that we're trying to achieve. So for example, inclusion capability, attracting and retaining a diverse workforce, customer inclusion, et cetera. And we have people with lived experiences across all of those diverse cohorts sitting in these working groups. This is really to drive more intersectionality. I think when we consulted with some of our networks around making this move, it was very positively responded with by the groups because, for example, in our neurodiversity group, they never actually identified with the accessibility group because they don't identify as having a disability. And when we made the change to the intersectional groups, the comments we got from some of the people was "This is fantastic because now, you know, not only can I represent my neurodiversity but I'm also LGBTI and I don't have to pick which group I'm in, I can go to the inclusion capability group and make an impact in that regard", so we have ---
MS BENNETT: That was only one lunchtime meeting. Can I ask about that as well, is that LGBTI gender neurodiversity, disability, all encompassed with that now one diversity group? Is that fair?
MS ABRAMS: No, there are still five diversity groups but they are more organised around of the outcomes of what they are trying to achieve. So there's a group that is organised around capability, and how do we drive inclusive diversity. There is a group organised around attracting a diverse workforce, and we have, as I mentioned, people with lived experiences in each of those groups. We have people that identify as having a disability, as LGBTI, someone from a ---
MS BENNETT: Slow down slightly, I'm sorry.
MS ABRAMS: I get very excited, apologies.
MS BENNETT: Pleased to see that.
You've spoken a bit about intersectionality, is that because all of those five groups drawing across the organisation have a common experience? Is that one of the things that drives that?
MS ABRAMS: Absolutely, there are commonalities in those experiences. I think the answer is yes.
MS BENNETT: So commonality in some of the barriers that are faced by those different groups?
MS ABRAMS: Some, but not all, and that's why it's very important for us that we have people with a diverse experience in each of those groups moving forward. I think, just to add, if it's okay, we also do have to sort of complement these working
groups, we have employee network groups as well. So we have a group called Empower which is our disability employee network, and we have a neurodiversity network as well. Those are self organised groups that identify in that way and can go along and have those networks available to them.
MS BENNETT: How long have you had these groups in place at Medibank?
MS ABRAMS: The employee networks, the network groups have been in place for at least five years. But the working groups also, but the reorganising of the working groups has happened this year.
MS BENNETT: They are on a voluntary basis, I take it?
MS ABRAMS: They are on a voluntary basis, but for some of the work that happens in these working groups, it comes down to part of people's day jobs. Like the recruitment team, for example. So there's a combination of voluntary, passionate allies and lived experiences, and people whose role it is, actually, to deliver on some of these actions.
MS BENNETT: Yes. Thank you.
Now, Ms Badenoch I understand Telstra has similar teams or groupings. Can you briefly tell us about those?
MS BADENOCH: Absolutely. We do still organise around representative groups. So we have a range of groups across the organisation, very, very similar to Medibank, and our group which is made up of people with lived experiences and allies around the area of disability is a group called TelstrAbility, and that group has come to be formed approximately just over two years ago, and it has about 80 members.
Each of our employee representative groups has people leading that. It might be a single person, it might be a shared role. In the case of TelstrAbility we have both a person living with a disability and also an ally who shares that accountability because they want to own it together. Those people then flow up and are part of an integrated council which is chaired by our CEO who actually brings all of the representative groups together, so similarly to Medibank, it's done slightly differently but the intention is to bring those issues together cohesively, with our CEO in terms of progress being made, barriers, issues to address, those sorts of things.
MS BENNETT: Ms Davies, can you tell us, you have organisations of this kind at Australia Post, I take it?
MS DAVIES: We do, Counsel, yes. We have Women at Post, Mob at Post, Accessibility Matters and Post Pride. These are all representative groups that are sponsored by Executive General Managers, and in particular the Accessibility Matters Group is the disability group and we have 90 members in that group. We
have 17 people as part of a working group, and I am personally the executive sponsor of that particular group.
And we have board participation in that group. The board will attend meetings in that group. The Executive General Managers attend meetings in that group, and we utilise and work with that group for a wide range of things in the organisation for everything connected with disability from, you know, things in the workplace to designing products to looking at how we design buildings, new builds so a wide range of things.
MS BENNETT: The members of those committees, are they providing that input on a voluntary basis?
MS DAVIES: Yes.
MS BENNETT: Now, one thing I would like to address with this panel is the issue of disclosing their disability or disclosing their attribution, and this is I think a point that meets with intersectionality that, Ms Abrams, you were speaking about, because some of the attributes need to be disclosed in order to be identified. And disability can be one of those. And so is the disclosure let me ask Ms Abrams first. What is your approach to the disclosure of disability at Medibank?
MS ABRAMS: It's a really interesting question and one we've been grappling with, because the way we define disability at Medibank is quite narrow. So the question that we ask people is, do you identify as having a disability and then the description of disability is a condition that restricts your abilities to complete your day to day tasks, be it work or social. And I think that definition is quite subjective for people. I know that we will have members of our neurodiversity group that would absolutely not answer "yes" to that question. So I think reading the Commission's interim report and the talk about disability being an evolving concept, I think that's something that we are grappling with as it relates to disclosure.
MS BENNETT: While we're speaking about that disclosure, I think you've got a disability definition in your Workplace Adjustments Policy. Is that the definition that applies across the board or is that just for the purposes of adjustments?
MS ABRAMS: That's just in the Adjustments Policy. It's different to the one we've been using in the engagement survey.
MS BENNETT: I see. So where have you sourced the definition that you use in the survey?
MS ABRAMS: That's from the Australian Network on Disability.
MS BENNETT: I see. You also, in that adjustments policy, identify a workplace adjustment. While we are at that policy --- which appears at Tab 65, Commissioners --- I wanted to ask you about that. We are not going to spend long on this, but I'm
concerned that people with a disability might feel that they will be seen as a cost or a burden, and one of the reasons for that can be that they might need adjustments, and they might feel that is placing a burden on their employer to provide them. Do you agree that's a fear people might have in the workplace, Ms Abrams?
MS ABRAMS: Yeah, absolutely it could be a fear.
MS BENNETT: Ms Badenoch, you would agree, wouldn't you, that people could be concerned with disclosing their disability because they'll be seen as difficult or trouble or expensive. Is that a fair concern for people to have?
MS BADENOCH: I think it would definitely be a concern that people have, yes.
MS BENNETT: In fact it was in the Intopia report that was one of the pieces of feedback that Telstra received, wasn't it, in 2019; the focus groups as part of that report said they feared to disclose their disability because of how it would be perceived?
MS BADENOCH: Absolutely.
MS BENNETT: And that prompted some change from Telstra around this issue?
MS BADENOCH: It did prompt some training from Telstra around this issue. There is a range of things we've changed but one of the things we believe we are seeing improvement from is actually the level of day to day conversation about different forms of disability. So to a degree, sort of normalising it, making it more and more comfortable as part of our conversation, the stories we tell, showcasing positive stories where people are either having great career development opportunities, different sorts of things happening in the organisation because part of this change can't be done from policy. You used the words "You can't be what you can't see" earlier, and you need to make those changes in an organisation and that is one of the big shifts we've made, one of the ---
MS BENNETT: Please continue, sorry.
MS BADENOCH: That's all right. I was going to say one of the data points which is by no means conclusive but I think encouraging, we significantly increase, for example, our internal discussion and showcasing of employees who had mental or cognitive disability, and had people tell their own stories around that, and we absolutely have seen an uplift in people reporting having mental health or cognitive disability challenges in our workforce. So we can see a correlation when we actually showcase and talk about it more with people's willingness and comfort to disclose.
MS BENNETT: While we're talking about that, if a person needs an adjustment, they need to disclose to their manager, don't they?
MS BADENOCH: To their manager or they can go by other means. They can go
straight to our Health and Safety team as well.
MS BENNETT: So as I understand it, whose responsibility is it to oversee the adjustments to make sure it has been implemented for that person?
MS BADENOCH: The manager is ultimately responsible. In most of our circumstances, that would be exactly how it were to happen. The manager would work in partnership with our Health and Safety team who actually support the relevant adjustments being made and they would do that in partnership.
MS BENNETT: Yes. And in fact a request needs to be submitted, and it gets reviewed by the Donesafe triage team, I think you tell us at paragraph 78.
MS BADENOCH: Correct.
MS BENNETT: Who is the Donesafe triage team?
MS BADENOCH: Donesafe is our internal health and safety system. So that's internal language which makes sense to us, but which we would be more conscious of. So it is my Health and Safety team, and the Donesafe triage team are people who will be taking any of those reports from the system, and making sure that they are either handed to an appropriate specialist or any further follow up or inquiries are made so that we can respond and action a request.
MS BENNETT: If there is a cost associated with the adjustment, where does it sit?
MS BADENOCH: It depends on the nature of the adjustment. They could come from either my team in the health and safety function, or they may come from the direct line manager's budget.
MS BENNETT: Is the direct line manager the one who has the responsibility for making the adjustment and implementing the adjustment?
MS BADENOCH: Yes.
MS BENNETT: Did the Intopia report suggest it might be appropriate to centralise that cost centre?
MS BADENOCH: Let me have a look. I'm just trying to remember if that was one of the specific ones. We pay a lot of the costs. As I said, we carry a lot of them within my team but not 100 per cent of them. And I will give you an example ---
MS BENNETT: I think it's item 12 on page 9 of the statement, it says --- the ‘risk statement’ is:
Failure to provide essential funding for workplace adjustments leads to lack of clarity on who pays for adjustments. Managers may be deterred from hiring
candidates with disability because of concerns about the cost of adjustments.
The probability of that is identified by Intopia as being medium, the impact is medium, and the risk is medium. The mitigation suggested is that:
Telstra consider centralising funding for adjustments to remove reliance on the employee's manager and their department budget to approve or decline the request.
It goes on to talk about fast tracking. So that is not a recommendation that Telstra has taken up. Is that right?
MS BADENOCH: No, we have centralised a number of the adjustments into my team. There are still some that sit with the line manager, but I will give you an example because it actually matters why it still sits with the line manager, because it actually, for example, is an adjustment that could be made for any employee. So, for example, setting up an appropriate home work station is something that sits for all of our employees whether --- and is available to all of our employees whether or not they identify as having a disability, they can order appropriate chairs, they can order appropriate sit stand desks, all of the additional monitors, et cetera. All of those costs do sit in relevant line manager's budgets because they are as accessible to any employee in our business, so they are not specifically for employees with a disability because we choose to make those tools and make that equipment available to any staff member. I have some of that equipment in my own home.
So where it is something that is provided as part of our standard employment construct, it sits in with the line manager; where it's a unique and differentiated support service, it will sit with my team in the Health and Safety team.
MS BENNETT: So a person with disability who requires an adjustment to be able to perform their role will come through your team?
MS BADENOCH: Correct.
MS BENNETT: And the funding for that will always be centrally through your team?
MS BADENOCH: As long as it's not an adjustment that is just as I said, with a chair or a desk, any employee can ask for that. And you don't need to have a specific adjustment, you can ask for that. So an employee with a disability or an employee without a disability will go to their line manager they actually don't even have to go to their line manager, they can press a button in our system and order exactly what they want. They don't require any approvals to get that, so the line manager actually doesn't control. It's a central system but it's charged to all of our budgets. All of the specific support services are through my team.
MS BENNETT: I see. So the manager is responsible but you pick up the bill?
MS BADENOCH: Correct.
MS BENNETT: Is that fair?
MS BADENOCH: Yes.
MS BENNETT: I think, Ms Abrams, I was in the middle, and I'm sorry, about speaking about you adjustments within your organisation. I will just ask you very briefly, you tell us in your statement that you will make any adjustments where it's “reasonably practicable” to do so. You say that at paragraph 39. Is that the policy of Medibank to make any adjustment that is “reasonably practicable” to make?
MS ABRAMS: Yes, absolutely. I mean yes.
MS BENNETT: How do you communicate that to your staff? How do they know anything that's “reasonably practicable”?
MS ABRAMS: It would depend on the circumstances or the case. That's a decision that is made in consultation between the leader of the team, the People & Culture business partner, the Diversity and Inclusion lead, so it's a consultative process, there is no one person making that decision on behalf of the organisation.
MS BENNETT: So what does "reasonably practicable" mean?
MS ABRAMS: Well, I guess that means something that is within our means to be able to make happen under certain costs and resources.
MS BENNETT: Do you have any particular guidelines about what the cost and resourcing is that constitutes “reasonably practicable”?
MS ABRAMS: Not that I'm aware of, no.
MS BENNETT: Is there any guide or limit that Medibank has?
MS ABRAMS: Not defined, that I'm aware of, no.
MS BENNETT: How many people are making these decisions across the organisation?
MS ABRAMS: It would really depend on how many requests we have coming through. I couldn't give you a definitive answer on that.
MS BENNETT: Is it managers who are making this decision?
MS ABRAMS: As I mentioned, it's a consultative process between the People & Culture business partner, the Diversity and Inclusion team, and the People Leader.
There's no one ---
MS BENNETT: Who is the ultimate decision maker?
MS ABRAMS: The decision maker would be the People Leader, they are doing the consultation with, the D&I team and the People & Culture Business Partner.
MS BENNETT: And the People Leader is the manager of the employee?
MS ABRAMS: That's correct.
MS BENNETT: How many People Leaders are there across the organisation?
MS ABRAMS: There are many, many People Leaders. I would hazard a guess at around 400.
MS BENNETT: Do they receive any training in what "reasonably practicable" means?
MS ABRAMS: No, not that I'm aware of, not specifically on that.
MS BENNETT: Isn't there is a really significant risk you will have radically different interpretations of what is “reasonably practicable” across those hundreds of people?
MS ABRAMS: I think because we involve the Diversity & Inclusion team and People & Culture Business Partner in that process, that then --- majorly reduces the risk of that.
MS BENNETT: You have got a policy that addresses it. It's at Tab 65, the 2017 policy. I think you had planned to update this policy last year, is that right?
MS ABRAMS: Yes, that's correct, and we are just in the process of finalising that at the moment.
MS BENNETT: You say, I'll just read it out, at 3.2 of the policy:
Medibank recognises that some of its programs and activities may have unintentional consequences for employees and have the potential to create or maintain barriers to accessibility of opportunities for people with disabilities. Medibank will, where reasonably practicable, ensure that the following are free from any discriminatory effect.
Then you go on to list a number of things. What I want to suggest to you is this language of "reasonably practicable" isn't particularly consistent with the Disability Discrimination Act. Would you agree with that?
MS ABRAMS: I would, as I've come to realise very recently.
MS BENNETT: Yes. Is that a problem?
MS ABRAMS: I think we need to make sure our policies are in line with the Discrimination Act, absolutely.
CHAIR: How recently, Ms Abrams?
MS ABRAMS: Just listening in on the Commission hearing from Monday, Tuesday, Wednesday.
CHAIR: I'm glad to hear we're having an effect. That's good.
MS BENNETT: You would accept this needs to change?
MS ABRAMS: I do.
MS BENNETT: I just want to just one moment, if it please the Chair.
MS BENNETT: Chair, those are the questions I have for this panel. Perhaps we will hand them to the Commissioners if they have any questions.
CHAIR: Thank you very much, I will ask Commissioner Ryan.
COMMISSIONER RYAN: I have no questions.
CHAIR: Thank you. Commissioner Galbally?
QUESTIONS BY THE COMMISSION
COMMISSIONER GALBALLY: I apologise if you have already answered this question, but I would still like to clarify it. Do you track adjustments? Do you have a tracking system so that centrally you know all the requests for adjustment that have been made, and do you track whether those adjustments have been provided? That's my first question to the three. Maybe start with Telstra.
MS BENNETT: Ms Badenoch.
MS BADENOCH: Yes, happy to cover that. Yes, we do track requests for adjustments as was mentioned before, they come through our system Donesafe, which gives us a central record of requests being made.
COMMISSIONER GALBALLY: You know how many you respond to and provide and how many you don't?
MS BADENOCH: Correct. Correct. Yes. As a result we can see how many we've responded to, and what adjustments have been made because we also use that to inform our broader policy and longer term changes that we might make.
COMMISSIONER GALBALLY: Ms Abrams?
MS ABRAMS: Yes, similar to Telstra's response, we do track and we actually realised in recent times that with regards to people requesting IT accessibility adjustments, that we weren't keeping accurate records of whether they were related to a disability or not, and now we've implemented a change recently so that we can be very clear that we have an accurate and complete picture of all the workplace adjustments that are requested.
COMMISSIONER GALBALLY: And the ones that are provided and the ones that aren't?
MS ABRAMS: Yes, that's right. So we would now know what those would be. Yes.
COMMISSIONER GALBALLY: And Australia Post?
MS DAVIES: Yes, Commissioner, we do track workplace adjustments and I think it would be fair to say we track them in three places at this moment in time, because they can occur, like Telstra, in the workplace as part of everyday work. It can happen as part of the recruitment process or as part of the rehab process. But in our Accessibility & Inclusion Plan, we have a commitment to deliver one workplace adjustment policy and one workplace adjustment system.
COMMISSIONER GALBALLY: I mean, I would be really interested to have a look at that data in detail, including the ones that aren't provided.
And then the second question is, do you ask staff who have identified as disabled whether they are being well supported in receiving appropriate accommodation, and then, if they say they're not, do you follow up with a phone call to them to find out more about it?
MS BADENOCH: I'm happy to answer first, Commissioner. We asked our staff through very similar, I think, to the other organisations have referenced today, through our employee engagement survey we ask a range of questions that get to the heart of are they feeling supported, included, those types of questions, and we also can see their relevant engagement with the organisation. Those who choose to disclose as having a disability are anonymous so we can't actually follow up with that cohort if we identify any issues in them being less engaged or having more negative experiences.
It's a good question because we would need to do something differently to be able to do that. At the moment our data would indicate that there's not an inherent problem with either engagement or experience within that cohort of employees, and the best way that we have to actually get that information is with our employee representative group which is very vocal, very active and do provide feedback on anything that's not working the way it should. So that would be the most interactive process, and we find it works very well because it allows individuals to approach any member of the executive team all the way through to being able to sit and raise their issues with our CEO, but it also allows them to work in a collective to influence change if that's where they are more comfortable doing it as well.
COMMISSIONER GALBALLY: Ms Abrams?
MS ABRAMS: Yes, so very similar to Telstra. When someone has made a formal request for a workplace adjustment, we do track that, we do check to make sure the adjustment is working effectively. More broadly, for people with disability and their ability to share their feedback and concerns, again, like Telstra, track that very similarly through our engagement survey, which again like Telstra is anonymous so we can't directly reach out to people. But we do have a means now, as part of our new engagement survey tool, to respond to the commentary. So if there was commentary coming through from employees that sparked concern around their treatment or their experiences, someone with a disability, we now have the ability to contact that person and ask if they would be willing to come forward and share that, and we are training our managers to be able to do that in a really effective way. And as part of our new Accessibility & Inclusion Plan, we will also be running Listen & Learn sessions similarly to Telstra with our networks, and inviting them to come along and chat with our senior executives and our CEO just to share their experiences around what's working and what is not.
So that's going to be something we're going to be putting in place.
COMMISSIONER GALBALLY: Thank you. Ms Davies.
MS DAVIES: Commissioner, similar to the two previous organisations, the engagement survey is the sort of formal way of tracking that. But the Accessibility Matters group, the 90 members within that group are very active in this particular community, and there are a number of ways that we get feedback from people in this area. So I think we would be very similar to the other organisations.
COMMISSIONER GALBALLY: Thank you.
CHAIR: Thank you very much. I will make the usual assumption that there are no questions from legally represented parties. Thank you to the panel and thank you each for coming to the Royal Commission. In the case of Ms Davies and Ms Badenoch, thank you very much for returning to the Royal Commission to give your evidence. We appreciate your assistance. Thank you.
THE WITNESSES WITHDREW
MS BENNETT: Chair, if we might have 15 minutes as an afternoon break before the next witnesses.
CHAIR: Yes, we will take 15 minutes and resume therefore at 3.10 pm Eastern Summer Time. Thank you.
ADJOURNED [2.54 PM]
RESUMED [3.09 PM]
CHAIR: Yes, Ms Dowsett.
MS DOWSETT: Thank you, Chair. For the final session this afternoon, you will hear from two witnesses Ms Emily Howie and Ms Lauren Matthews from the Victorian Equal Opportunity and Human Rights Commission.
CHAIR: Thank you both for your joint statement and thank you for coming, virtually speaking, to the Royal Commission. Where we are located, Commissioner Galbally is in Melbourne, I am in the Sydney hearing room, Commissioner Ryan is with me in the Sydney hearing room, and Ms Dowsett, Counsel Assisting, is in the Sydney hearing room. I will now ask her to ask you some questions. Thank you.
MS EMILY ELIZABETH HOWIE, CALLED
MS LAUREN MATTHEWS, CALLED
EXAMINATION BY MS DOWSETT
MS DOWSETT: Ms Howie, you are the Director of Legal and Dispute Resolution?
MS HOWIE: That's right. I'm now the General Counsel and Director of Dispute Resolution.
MS DOWSETT: You were appointed to the Director role in February 2021?
MS HOWIE: That's right.
MS DOWSETT: Ms Matthews, you are the Manager, Education Partners and acting in the role of Director, Education and Engagement?
MS MATTHEWS: I'm now the Director of Education and Engagement.
MS DOWSETT: Congratulations. Together, as the Chair indicated, you have prepared a joint statement dated 2 August 2021?
MS HOWIE: That's right.
MS MATTHEWS: Yes, correct.
MS DOWSETT: Have each of you had an opportunity to read that statement in preparation for giving evidence today?
MS MATTHEWS: I have.
MS HOWIE: I have too.
MS DOWSETT: Are there any corrections?
MS MATTHEWS: No.
MS HOWIE: Only corrections to our titles, I suppose.
MS DOWSETT: The contents of the statement therefore are true and correct?
MS HOWIE: Yes.
MS MATTHEWS: Yes.
MS DOWSETT: In paragraph 55 of the statement you provide statistics in relation to the Commission's work insofar as it concerns dispute resolution and those statistics indicate that of the areas of public life regulated by the Victorian Equal Opportunity Act, disability discrimination in employment is the second highest --- of those areas of public life, it's the second highest level of complaints; is that correct?
MS HOWIE: That's right.
MS DOWSETT: It's my understanding in recent times, there has been an increase of the use of the Commission's inquiry service?
MS MATTHEWS: That's correct.
MS DOWSETT: Can you explain, Ms Matthews, explain to the Commission what
the inquiry service is and what that increase relates to?
MS MATTHEWS: The Equal Opportunity and Human Rights Commission has an information function and in order to give information on our laws to all people across Victoria, we operate a five day a week inquiry service. To access the inquiry service, people anywhere in Victoria can phone us, they can engage on web chat or they can send an email into the inquiry service.
Our inquiry services have seen a 24 per cent increase in inquiries over the past year.
MS DOWSETT: Did that increase or part of that increase at all relate to discrimination in employment?
MS MATTHEWS: We have seen in relation to discrimination of people with disabilities in employment, we have seen an increase this year as opposed to last year, but it does continue to be a constant number of around between 40 and 30 per cent of all of our inquiries relate to discrimination of people with disabilities in relation to employment. But probably a particularly important statistic is overall discrimination, not just in employment, but in relation to any area of public life is 21 per cent of all of our inquiries in total.
MS DOWSETT: In the statement you indicate that many of complaints that come to the Commission relate to the issue of reasonable adjustments, and I'm taking this from paragraph 57 of the statement. You make some observations about a limited awareness among employees about employers' obligations, among employers about their obligations and the difference between State and Commonwealth legislation, and between workplace injuries and non workplace injuries or disabilities. And you suggest that more education is required. Firstly, have I captured your evidence correctly?
MS HOWIE: I think I will take this one. There is a very low level, we see, through our dispute resolution service, of understanding and confidence among employers and employees on how to deal with this question of reasonable adjustments. The issues that we see are that employers can treat workplace and non workplace injuries differently, and so they accept that they have the requirement to make reasonable adjustments when a person is injured at work. But if the injury is not work related, then they are less aware that that is their obligation.
We also refer in our statement to a survey that we conducted that showed a really low level of awareness among workers with disabilities, about their right to request and receive reasonable adjustments. And there is also a confusion around whether a person who is requesting reasonable adjustments has to provide evidence of their disability or of the need for those adjustments. So these are just ongoing issues that we see in our service, and that's why we ask for that greater education and support to help employers understand and comply with their duty, but to also support workers with disability and their carers and family to have those conversations about the reasonable adjustments that they require.
CHAIR: What is the practical difference between the reasonable adjustments provision in the Victorian Act and the Disability Discrimination Act provision? What difference in practice does it make?
MS HOWIE: That's a good question. The Victorian Act has a standalone provision for reasonable adjustments, and I think the difference is probably in the way that it's dealt with in part in our complaints service. So we don't have the requirement that you prove discrimination. We just have the requirement that reasonable adjustments be provided.
CHAIR: Thank you.
MS DOWSETT: So leaving to one side the issue of employees with disability and their families and carers, so focusing on employers, is it the case that the Commission has provided as part of its statutory function education and information to employer groups about their obligation to make reasonable adjustments?
MS MATTHEWS: We have an education function, both under the Charter of Human Rights and the Equal Opportunity Act and in both of these functions we're able to provide education services to employers in relation to their obligations to people seeking employment who have disabilities as well as to make adjustments and to ensure there is no unlawful discrimination in the workplace.
We run a number of education services. But in 2019, of interest perhaps to the Commission, in 2019 we ran a consultation with people with disabilities to try to understand the main needs from their point of view of employers. And that led to us designing a course on reasonable adjustments --- a webinar, in fact --- on reasonable adjustments that we deliver on a pro bono basis. In 2020 we ran it four times, and in 2021 this year, we've run it twice and anyone can phone into that. And we know that a number of employers have signed into that to better understand their duties to provide reasonable adjustments, but also to give some pragmatic advice about how to make requests for reasonable adjustments, and how an employer could respond to those requests in a healthy and quite productive way.
And we find that there is some appetite with employers to understand better some of those practical advice that we can give through education on how to make these duties very practical, and how they can step those through.
MS HOWIE: I might just add, if I can, in the delivery of the dispute resolution service, one of the aims is to educate the parties to our service about their rights and about their duties under the Equal Opportunity Act. Our role is to eliminate discrimination, and education is a key part of that. So in --- another way in which we do education is actually in that kind of very individualised way with the parties to our dispute resolution process.
MS DOWSETT: The obligation under State and Commonwealth law has existed in
its current terms for more than a decade. So my question, the reason I asked about education is I'm interested to know if you really think this is an education gap, if there is a lack of information for employers, or if there is some other reason why this continues, more than a decade in, to be something people don't understand or don't appreciate it's an obligation they have.
MS MATTHEWS: I think it would be very fair to say that the obligations to provide reasonable adjustments on the part of employers are often misunderstood. When we talk about those with employers, there is often quite a revelation about the duties at law. So awareness of the laws and awareness of the duties is one problem that we are trying to overcome. The other problem is knowing that you have obligations and know how to apply those obligations, what you need to do, what steps you need to take, how to reform your workplace to make these accommodations is another thing.
There is a lot of misinformation about perhaps the cost of applying adjustments. Erroneously, the evidence doesn't support that there is necessarily --- the cost of providing adjustment shouldn't be a deterrent as it doesn't outweigh the benefit of the employee's contribution to the place of employment. So there is a lot of assumptions, false assumptions to overcome in --- through education, and a lot of understanding about what not just good practice but what compliance looks like, and then what good practice looks like.
MS DOWSETT: And has this been something that you the Commission has been working on for a decade, trying to bring employers along in their understanding of their obligations and its practical application, or is this a new focus for you?
MS MATTHEWS: We have been providing education on the duties under the Equal Opportunity Act not just for the past decade, because the 2010 was just the new law. But the Commission has been providing education services for about 40 years. And over that 40 years, the focus has been on making sure that workplaces understand their duties under the Equal Opportunity Act and from 2010 that meant providing adjustments for people with disabilities. But prior to that, there has always been a duty to ensure the workplace is free from discrimination against people on the basis of disability but also in recruitment of people.
So those two prime touch points where discrimination arises the most. So we have been working at this for quite a number of decades.
MS DOWSETT: Do you feel like you're making any headway?
MS MATTHEWS: That's a very good question and I might not be the best one to judge the impact of that work. We certainly have been able to provide more clarity in the advice that we give over time as we understand better and the Commission has the great opportunity to inform its education services by being able to draw upon our other functions with the policy function, intervening in cases, running a dispute resolution service. All of these other functions of the Commission very much inform what our education programs are, and continue to help us share with employers
better and more strategic ways to meet their duties.
MS DOWSETT: I want to turn now to the positive duty in section 15 of the Act. You have described this in your statement as "a powerful tool for preventing discrimination against people with disability in employment and encouraging effective responses when discrimination does occur." Can you explain to the Royal Commission how you've come to this view? What makes you say the positive duty is a powerful tool?
MS MATTHEWS: I can take this one if you like, Emily. The positive duty is unique and one of a kind in Australia. It does provide it does establish a positive duty on employers to identify and takes reasonable and proportionate measures to eliminate discrimination and victimisation, which is one of our main themes in our inquiry and complaints service, is victimisation as well in relation to people who make complaints of disability discrimination.
The positive duty flips the discussion. It stops asking people with disabilities to do the heavy lifting of having to raise complaints in order to bring about change. It flips the discussion to put the burden and the responsibility back on the place of employment, to work in the preventative space and do the heavy lifting to prevent discrimination from occurring in the workforce --- (overspeaking) ---
MS DOWSETT: Individuals can't bring an action to say, "I think my employer is not meeting their positive duty". Where does the enforcement of that positive duty come from?
MS HOWIE: The enforcement can only happen through the use of our investigation function.
MS DOWSETT: How often do you use that?
MS HOWIE: We've used it twice. So we've had one investigation that we reported fair minded cover, and that was reported in 2019 in relation to discrimination against people with mental health issues in the travel insurance industry. And we have an investigation on foot at the moment. We are investigating sexual harassment in the retail industry, but it's the same investigation power that we would use if we were to investigate the positive duty in discrimination in employment.
And in fact, the way that we are using the investigation power in our current investigation is not to investigate the incidents of harassment or discrimination, but actually investigating the extent to which the employer and duty holders have actually discharged their duty to take reasonable steps to eliminate that harassment. So we don't require in that investigation process for individuals who have been harmed by discrimination or harassment to come forward; instead, we investigate what has the duty holder done to prevent that harm from happening in the first place. And that's the way that we see the enforcement of the positive duty could be really beneficial, if we are able to use that investigation function more.
MS DOWSETT: It's not something that you have ever used, if I'm correct in understanding your evidence, in respect of disability discrimination in employment?
MS HOWIE: No, that's correct.
MS DOWSETT: So your description of it as a powerful tool is based on those two occasions of using your investigation function, or is there something else as well?
MS MATTHEWS: Could I add to that just for a moment? We've been able to use the positive duty in very powerful places in education, building behaviour change, and using the positive duty to change the agenda of how organisations see their responsibility, how employers see their responsibility. And that can be very impactful for those where the education can be effective.
We've been able to use the positive duty in our research that has led to guidance and guidelines where we are able to look at systemic causes and solutions, which are then embedded into guidelines, practice guidelines for any employer to see. We've also been able to raise the positive duty in our dispute resolution function. We are able to have conversations once a matter comes to us. We are able to talk to employers to explain what it means to prevent.
So as well as the investigation function, there are a number of other functions of the Commission where we are using the positive duty in very constructive ways to try to have more systemic outcomes around prevention.
MS DOWSETT: Thank you. Now, those codes that you spoke of, do you have one of those around reasonable adjustments and the obligation to provide reasonable adjustments?
MS HOWIE: Are you referring to the guidelines that we ---
MS DOWSETT: Sorry, guidelines.
MS HOWIE: The guidelines that we've produced recently are in relation to sexual harassment in the workplace. There is a range of them, we don't have any ---
MS DOWSETT: I'm specifically interested to know, is there one about the provision of reasonable adjustments in section 20 of the Act?
MS HOWIE: We don't have one specifically about that, although we did produce a guideline for recruitment, for the recruitment industry and employers in 2014, and that touches on, to some extent, how to accommodate people with disability in a recruitment process. So it's a much broader guideline for all forms of discrimination, but it does have some reference to how you would treat or how you would discharge your duties in relation to recruitment.
MS MATTHEWS: We also have a guideline on mental illness and complying with the Equal Opportunity Act that contains references to how employers should understand the reasonable adjustments. We have a flexible work chatbot that is also live online, where an employer and an employee can click through to try to understand what their rights are and what their obligations are, and how to have a more constructive and meaningful conversation about making a formal request for adjustments, what should be in that conversation, and to give some tools for both employers and employees to navigate those conversations in a more constructive and productive way.
MS DOWSETT: And is that chatbot --- is that the right word, chatbot?
MS MATTHEWS: It's called the flexible work response tool. In fact, I'll just get the exact name for it, but yes, it's a ---
MS DOWSETT: Is it accessible to an employee with a disability? What steps have you taken to make sure somebody can use that tool?
MS MATTHEWS: Before the tool went live, we had an accessibility audit, we also did a heuristic assessment of it. The only way we have a warning on our website that the only its main limitation is particular new technologies of screen readers may not be able to use the tool on the screen reader. But otherwise the chatbot has met accessibility standards.
MS DOWSETT: You spoke about, Ms Matthews, the ability to use the positive duty in conversation during the Commission's dispute resolution function. And so I want to turn now to that dispute resolution and just confirm with you that this is, notwithstanding the positive duty in the Victorian Act, the dispute resolution function is still very much contingent upon individual complaints?
MS HOWIE: That's right. It's based on individuals bringing complaints to the Commission.
MS DOWSETT: And it requires the respondent to the complaint to agree to participate?
MS HOWIE: That's right. It's voluntary.
MS DOWSETT: I don't know if you've been following the evidence of the Royal Commission and if you heard the evidence of Ms Banks earlier this week?
MS HOWIE: I know of it. I haven't heard it all.
MS DOWSETT: So Ms Banks spoke about conciliation and the power to order somebody into conciliation and how you can start a conversation. Once you get them in the room, you can get people to talk even though they don't think they want to. Just to confirm, the Commission doesn't have a power to get people in the room?
MS HOWIE: No, we don't. Our dispute resolution process is entirely voluntary.
MS DOWSETT: Is it your experience once they volunteer to participate, that once they come along people are willing to actively engage in a conversation that is about resolving the dispute, or is there a proportion who are there to tick the box to say they came along but there is no meaningful discussion?
MS HOWIE: It means that people who are there are genuinely wanting to achieve some form of resolution in order or to understand at least more about what the complaint is. We have a very consistent resolution process, around 85 per cent of complaints that are successfully resolved. So that's an indication, I think, that people who are in the process want to achieve an outcome in that process.
MS DOWSETT: Some of the witnesses to the Royal Commission have spoken about power imbalances in dispute resolution processes, how employers are often, to use the colloquial, lawyered up, and complainants are self represented. Is that your experience, Ms Howie?
MS HOWIE: It's a mix, actually. There are complainants who can be represented. We see a lot of representation by unions, by Victoria Legal Aid, community legal centres and others, in our Commission. There is probably more representation of people with disability than there are for people who are complaining of discrimination on the basis of other attributes under our Act, but I would say that those power imbalances are very much still there and are still present in our processes. And one of the jobs of the conciliators in our service is to manage that power imbalance and to ensure that the process is as safe as possible for all parties who are involved. The conciliator provides information, assists in the resolution of this process, in order to make it less adversarial and to support an outcome.
MS DOWSETT: Can you perhaps explain to the Royal Commission some of the techniques that your conciliators use to help address that power imbalance and make sure that the process is safe?
MS HOWIE: One of the key things that conciliators will do is educate the parties about the Act and the law so that a complainant who is unrepresented can understand the kinds of arguments that they can make and that can be made against them. That makes a big difference.
The other kinds of techniques would be ensuring that the number of people who attend from one party doesn't overwhelm the attendance of another party, to make sure that people, that conciliations are run in a way that doesn't exacerbate that power imbalance.
If there are people who are less confident in the way that they speak or are likely to be upset by a face to face conciliation, then we might hold that conciliation by a phone or by shuttle process.
So there are a range of techniques that our conciliators would use to try to bring those parties together on as equal a footing as possible to reach that resolution.
MS DOWSETT: We heard from Victorian Legal Aid, I think it was in their evidence, that the Commission is able to offer an expedited process where the employment relationship remains on foot?
MS HOWIE: That's right, we have a fast track process for ongoing employment relationships.
MS DOWSETT: Are you able to comment on your experience at the rate of resolution of those complaints? I think you said it was 85 per cent generally. Where the employment relationship remains on foot, are you able to talk about the resolution of those complaints?
MS HOWIE: I don't have those statistics in front of me at the moment. I would be happy to provide them to the Royal Commission if that would assist.
MS DOWSETT: Yes. If you could take that on notice. The evidence that we have received goes to the importance of maintaining an employment relationship, particularly for a person with disability, because of the barriers to getting the job in the first place; if they lose this one, there mightn't be another one coming along for them. If we could have those statistics, that would be useful.
CHAIR: You indicate, of course, that the process of conciliation is voluntary but presumably some respondents are there because of the prospect of a proceeding in the tribunal which would result in a determination that can be enforced? Does that not occur?
MS HOWIE: In Victoria the complainant can go straight to the Victorian Civil and Administrative Tribunal without coming through our process. So, yes, the respondent could be there to be avoiding that process from happening in the future in the tribunal.
CHAIR: It may not be so much a matter of avoiding, but an alternative approach that might resolve the matter rather better from the employer's point of view than having been brought before the tribunal?
MS HOWIE: Absolutely, that's right.
CHAIR: Can the Commission represent a party before the tribunal?
MS HOWIE: The Commission can intervene in matters in the tribunal, but we would intervene in an amicus curiae type role rather than for one of the parties.
CHAIR: You can apply to enforce orders, as I understand it, of the tribunal?
MS HOWIE: Yes, we can. We can apply to enforce orders of the tribunal or to enforce outcomes of the investigations.
CHAIR: And bodies that are representatives of a complainant can bring proceedings on behalf of the complainant but you don't come within that definition?
MS HOWIE: That's right, yes.
CHAIR: That includes unions, I assume.
MS HOWIE: Unions could be representative bodies, yes.
CHAIR: Thank you.
MS DOWSETT: Are you able to tell the Royal Commission the statistics on the Commission intervening in discrimination and employment matters?
MS HOWIE: To date we've intervened in seven matters involving disability discrimination but none of them have been in the area of employment.
MS DOWSETT: You were answering a question from the Chair about parties that might be at conciliation in order to avoid going to the tribunal and having orders made against them. I would like to explore the kinds of remedies that you see coming out of Commission matters. Is it your experience that the remedies are beyond what might be ordered in by the tribunal or is it fairly much still a financial compensation route and not much else around the outside?
MS HOWIE: The kinds of remedies that we see are incredibly varied. So they can range from apologies to financial compensation, as you say. But one of the things that our conciliators will do is also put on the table the kinds of systemic outcomes that could assist in that workplace. So they could suggest, for example, that for the training be done of human resources staff or that policies be changed in order to prevent that kind of discrimination in the future. So there are a range of individual and systemic outcomes that can be achieved through the service.
MS DOWSETT: And when those are put on the table, do you find that they're more often than not taken up?
MS HOWIE: There is a really high interest in it. Whether it's more often than not, I couldn't answer, given the number of complaints that we have in the service every year. We had 1300 last year but we do see a significant amount of systemic outcomes.
MS DOWSETT: And when a settlement is achieved at the Commission, do you provide template settlement documents for the parties or do the parties bring their own?
MS HOWIE: We have a template settlement document that we use and it's really up to the parties with how they would like to proceed. That's something that we can support them with. Some parties prefer to use their own. It's up to the parties.
MS DOWSETT: Does your template include a confidentiality clause?
MS HOWIE: It does include that clause at the moment but our direction is not that those clauses are required.
MS DOWSETT: When you provide your template, do you ever see parties take them out? The confidentiality clause, do they take that out?
MS HOWIE: I would have to ask the conciliators about that. But I know from discussions that those kinds of confidentiality clauses have been be seen as a part and parcel of settlement agreements. We don't think that is unproblematic but that is the way that parties often do prefer to proceed.
MS DOWSETT: So just removing the double negative, you do think it's problematic?
MS HOWIE: It can be, yes.
MS DOWSETT: Do you think it would help to overcome that presumption of confidentiality if you took it out of your template?
MS HOWIE: It could, yes.
CHAIR: While we're dealing with the Act, I notice the definition of "disability" seems to be rather broad in that it includes the presence in the body of organisms that may cause disease. Doesn't every human being and indeed every form of life have an organism that is capable of causing disease in the case of human beings' DNA, for example. It seems a remarkable inclusion, if I may say so.
MS HOWIE: I don't feel qualified to answer about DNA. But it is a very broad definition.
CHAIR: I can assure you, you will have some.
MS MATTHEWS: Of course it's a definition provided by Parliament.
CHAIR: I'm not holding you responsible. I'm just wondering whether it has caused any problems? Don't worry, okay.
MS HOWIE: Chair, it hasn't caused problems, no.
MS DOWSETT: I'm being instructed that the definition is the same in the DDA or
similar in the DDA.
CHAIR: In that case, doubly so. Excellent.
MS DOWSETT: Just by way of conclusion, you have in the final part of your statement provided some suggestions for recommendations that this Commission may make. And if I've understood your evidence correctly, there is some recommendations around education which we've already touched on but also some recommendations around increasing or enhancing regulatory powers for your Commission but your equivalents in the States and Territories. Have I understood that correctly?
MS HOWIE: That's correct, yes.
MS DOWSETT: And what is it that you would like to see about your regulatory powers?
MS HOWIE: We would like to see the powers of compulsion and enforcement to be increased. In 2010 we briefly had powers to compel people to attend the Commission and compel documents as well as to enforce the outcomes of our investigations through compliance notices and enforceable undertakings. And those powers were actually removed from the Act before they came into force.
But this year in the change of Suppression Conversion Practices Prohibition Act the Commission was given responsibility for the civil response scheme to prohibit conversion practices in Victoria. And as part of that we were given the power to investigate those conversion practices with the full suite of investigation powers that we had originally in the 2010 Act. So they are the enforcement powers that we are seeking.
MS DOWSETT: So you don't seek a role, picking up on the Chair's question to you earlier, in which the Commission could bring actions for individuals to respond to complaint of discrimination?
MS HOWIE: No. We haven't sought that role.
MS DOWSETT: Thank you. Those are my questions for this panel, Commissioners. I hand them to you.
QUESTIONS BY THE COMMISSION
CHAIR: Yes. Thank you very much. Commissioner Galbally, do you have any questions?
COMMISSIONER GALBALLY: Thank you. Considering the volume of
employment related inquiries being the highest, are you planning to develop a suite of guidelines for disability employment? Is that on your program to develop them, about reasonable adjustments, about discrimination, all the issues that could come before you?
MS MATTHEWS: At the moment we don't have a plan to deal with it in a stand alone guideline. We do provide a great deal of information on the website. There is multiple ways that we can communicate. One of them is to communicate the standards through the website and to try to give as much direction as we can and so there is information that we are trying to make freely available to everyone in that way. In terms of a stand alone guideline, I don't believe that that has been resourced yet.
COMMISSIONER GALBALLY: Am I understanding the guidelines have more sort of oomph, you know, they are more directive? So I'm sort of just searching for what your plans are in this area that's your highest volume really?
MS HOWIE: You're right that the guidelines are a particular function that we have under the Act. They don't they have no kind of legal power but they are persuasive in terms of interpreting the Act which is why we like to use that function. One of the biggest issues in our service this year and the reason I'm speaking about the dispute resolution service now, we had a huge amount of complaints from people with disability in goods and services and the response to that has been to develop a range of online tools because the issue was the denial of access to goods and services to retail stores and to health settings for people who can't wear masks and their reason for not wearing a mask is a disability.
So our response has been a guide for retailers on how not to discriminate. An explanation for people with disabilities about their rights in these situations and what they can do with us. So that has addressed, you know, what we see as the biggest issue in the last year in our service.
COMMISSIONER GALBALLY: Thank you. So I'm taking it the answer is no, that there is no plan for a guideline or indeed guidelines plural? It sounds like it's a no. Thank you.
MS HOWIE: It's not for want of interest or recognition that the issue is significant. The development of a guideline is a big project for the Commission and would require additional resources from government. We could make a case for that and we see the need for a resource along those lines. It's not something that is currently in our plans.
CHAIR: Yes. Thank you. Commissioner Ryan, do you have any questions?
COMMISSIONER RYAN: Just a couple of items of clarifying some detail. You asked for us to recommend that you have the capacity to take own motion investigations. What would trigger such an investigation? Would you develop a
suspicion, would someone have to make a complaint? It would be interesting to know under what circumstances would you be able to commence an investigation which would involve compulsory powers to compel people to deliver documents and so on. What would start that process?
MS HOWIE: We haven't set out in the submission the kind of threshold for instigating an own motion inquiry. We do have quite a high threshold at the moment for instigating an investigation under the Act. So the requirements for an investigation are that it would be an issue that is serious in nature, that it relates to a class or group of persons that the issue can't reasonably be expected to be resolved through dispute resolution and there are reasonable grounds to suspect that there is a contravention of the Act.
We haven't set out what the kind of threshold would be for an own motion inquiry but it's possible that a threshold could be set to ensure that it is a systemic issue along those lines.
COMMISSIONER RYAN: Currently you have some capacity to do some of those things if you go to a tribunal and make a case though, don't you? Am I right?
MS HOWIE: In what sense?
COMMISSIONER RYAN: If you wanted to investigate a matter such as you've described, can't you go to the tribunal and ask them to give you the authority to compel documents and things of that nature?
CHAIR: The Commission can't of itself bring proceedings in the tribunal. That's what ---
COMMISSIONER RYAN: Okay.
MS HOWIE: We can ask people to give us information or to attend but if we want to compel them, we need an order from the tribunal to compel them to attend.
COMMISSIONER RYAN: One other detail. You apparently were able to give people are able to invite you in to give advice. Do they pay for that? You used, for example, the ambulance service. Do they pay for that advice or is that a service you provide free of charge?
MS HOWIE: That is using our review function. The review function can only be used when requested by an organisation. And, yes, that is paid for, that service. Is there anything you would add to that, Lauren?
COMMISSIONER RYAN: That's all I wanted to find out, to find out whether it was a paid service. Thank you, Chairman.
CHAIR: You have an education function which I can see that you devote very
considerable resources and expertise to. The whole structure of anti discrimination law, by which I would embrace the positive duties that are included in the Equal Opportunity Act, must be extraordinarily difficult for people to understand because there is the Commonwealth law, Disability Discrimination Act, there is the Human Rights Commission at Federal level, there are different tests as to what constitutes, or may be different tests as to what constitutes discrimination. Different forms of dispute resolution, depending upon whether you go under the Commonwealth law or whether you go under state law. How much of a challenge is that for you and how far does that impinge upon your education function?
MS MATTHEWS: Two main points there. First of all, when we're dealing with the positive duty in our education function, we are really trying to direct organisations and it wouldn't matter what jurisdiction they were actually operating in. At least in Victoria there is a positive duty to anchor it to. But it's really looking at those prevention implementation strategies.
So what are the behavioural expectations, setting behavioural expectations, outlining policies and procedures, ensuring that there is understanding of them throughout staffing, looking at capability of both employers, what are their capabilities to be managing their internal processes and what are the capability of employees to comply with the law. Monitoring, looking at eliminating any discrimination that does arise. So on the positive duty, there are so many conversations to have with employers and workplaces on strategies that we can communicate through education.
The questions around choice of jurisdiction of where to which particular law, particular obligations arise, it doesn't need in education we don't need to take an overly legalistic approach to those duties to comply with the general anti discrimination provisions in Victorian law would have compliance mostly with other jurisdictions. And so therefore we don't focus on the jurisdictional questions unless it's a particular issue arises by that employer in relation to jurisdiction. Mostly we would direct them to legal advice around what standards that they can comply with. But we are really looking at what strategies we are looking at to prevent and respond to discrimination.
CHAIR: Do you have any formal liaison with the Australian Human Rights Commission about the issues of common interest?
MS MATTHEWS: Yes. All of the commissions have a lot of discussions and relationships.
MS HOWIE: There is a formal network of the Commissioners at Commissioner level. It's called ACHRA, the Australian Council of Human Rights ---
MS MATTHEWS: Agencies.
MS HOWIE: Agencies, thank you, Lauren. And that is the sort of formal network through which the Commissions would work together.
MS MATTHEWS: And under that there are more informal networks such as under the education function, the commissions across Australia have a network that we stay in touch with each other about our education services. That's become difficult under COVID with competing priorities but it still is there.
CHAIR: Thank you. I will assume there are no questions of Ms Howie or Ms Matthews and it remains only to thank you very much for your statement and for the evidence you've given today. It has been very helpful and very interesting. Thank you.
MS MATTHEWS: Thank you.
MS HOWIE: Thank you for your time.
THE WITNESSES WITHDREW
CHAIR: Do you want to tender some documents?
MS DOWSETT: I am going to tender some documents.
CHAIR: I have in front of me Day 4 with documents from the Australian Public Service Commission, the Victorian Public Service Commission, the Northern Territory Office of the Commission for Public Employment and there is an additional document from Woolworths. May I take it you are tendering all those and I will admit into evidence those that are recorded in the document and I will initial it and date it today's date. Does that cover that one?
MS DOWSETT: That covers that one. There are two more.
CHAIR: Then there is one for Medibank and that is all that is covered by that particular document. The documents referred to in the Medibank document will be admitted into evidence and I will initial that document and date it with today's date. And then the final document contains the joint statement of Ms Howie and Ms Matthews and their curricula vitae, and that document I will also initial and date and the documents included therein can be admitted into evidence. Thank you.
MS DOWSETT: Thank you, Chair.
CHAIR: Now we adjourn until 10 am?
MS DOWSETT: 9.30 am tomorrow.
CHAIR: Right. What is going to happen at 9.30?
MS DOWSETT: The first witness will be Ms Christina Ryan from whom the Commission heard in Public hearing 18, followed by the Fair Work Ombudsman in a legal safeguards panel, and then overarching government strategy will be the last session, the last panel before lunch, and also the last panel of witnesses for this hearing.
CHAIR: Excellent. Thank you. We will adjourn until 9.30 am tomorrow. That is 9.30 am Eastern Summer Time.
HEARING ADJOURNED AT 4.01 PM UNTIL FRIDAY, 26 NOVEMBER 2021 AT 9.30 AM