Employing People with a Disability | Part 3

These webinars will give insight and support into the legal and employment processes when employing someone with a disability.

Intro

Some employers may wonder why should make the extra effort support an employee with a disability. There are a couple of reasons why an employer should take the time and effort to seriously consider how they can accommodate an employee with a disability. First of all, because an employer is required to make reasonable adjustments…

Group 61@2x

Duration: 14:32 min

Some employers may wonder why should make the extra effort support an employee with a disability.
There are a couple of reasons why an employer should take the time and effort to seriously consider how they can
accommodate an employee with a disability.
First of all, because an employer is required to make reasonable adjustments under anti-discrimination legislation,
and failure to do so can amount to discrimination.
Where discrimination occurs, a person can make a complaint to the relevant government body for compensation,
and a number of remedies may be available to the complainant, including but not limited to, compensation, an order
for the discrimination to stop, or an apology.
However, employers should bear in mind the benefits to their business where they employ someone with a
disability.
Employment costs for people with a disability can be as low as 13 percent less the for employees without a disability.
Workers’ compensation costs for people with disability four percent less of the workers’ compensation costs for
other employees.
People with a disability generally take fewer days off, take less sick leave and stay in jobs longer than other workers,
and once they are in the right job, people with a disability can perform just as well as, if not better than, other
employees.
In addition to this, employers find they benefit from greater diversity in their workforce, both from a reputational
perspective but also because of the diversity of views and experiences they have to draw from when making
business decisions

Aren’t employees with disabilities more likely to claim worker’s compensation?
Statistically no, workers’ compensation costs for people with disability are as low as four per cent of the workers’
compensation costs for other employees.
Realistically, if an employer has made the reasonable adjustments for an employee with a disability, and they have
fulfilled their duty of care like they would for any other employee, an employee with a disability should not be at any
increased risk of injuring themselves at work.
If anything, employee with disabilities are more likely to be vigilant and aware of hazards and risks in the workplace,
as they are already required to take care of them in their everyday life.

How do you manage the performance and conduct of employees with disabilities, especially where they have a
mental illness like anxiety or depression?
Generally, if an employee with a disability is under-performing or has engaged in misconduct, then you should treat
them just as you would any other employee.
However, when considering how to respond and deal with the employee, employers should first ensure that the
employee’s behaviour or performance issues are not related to their disability.
If the performance issues are indeed related to their disability, you should speak with them and consider whether
you need to make any changes to their role or the workplace to ensure their disability does not impact their
performance.

If the performance issues are unrelated to their disability, you should continue to undertake your performance
management process as usual. However, you may wish to be more sensitive to any emotional triggers in the process
and ensure that the process is handled calmly and professionally and supports such as a support person or access to
an Employee Assistance Program are offered.
You may need to allow for breaks, or an adjournment and re-scheduling if the employee is not able to continue with
the meeting without their mental illness being exacerbated.
If at any point you are not sure about how to handle performance management and discipline of an employee with a
disability, please don’t hesitate to contact the National Retail Association’s Workplace Relations Team on 1800 445
522 for further assistance.

Sometimes an employer may wish to specifically employ someone with a profound disability who may not be able to
perform all of the duties of a role, or who may not be as efficient as other employees.
The reasons for this may be altruistic or charitable or may only need a very entry-level employee in their
organization to perform a simple task, and are struggling to find someone who wants to perform the role.
Where this occurs, employers may find themselves wondering if they can have such an employee helping out in their
business for free or for a reduced rate because the employee has a profound disability?
Well, it will depend. If a person is performing work in your business, and they are not a contractor, they will either be
a volunteer or an employee.
Whether they will be one or the other will depend on a range of factors, such as the nature of the business, whether
it is charitable or for-profit, whether the person has expected hours of work, a uniform, and whether the work would
ordinarily be performed by a paid worker.
For example, if you asked someone to fold invoices and post them out to clients, and you asked someone to come
into your business every Friday for three hours to do so in a uniform, then this could potentially point towards the
person being an employee. This is because they have set hours of work, perform a role that would generally be paid,
and they wear a uniform.
Whereas if you allowed a person to come and go into your workplace whenever they liked, chat to customers, and
allow them to just observe, this is more likely to be volunteer work.
The importance of this distinction is that if a person is an employee, then they should be paid and employed
pursuant to the relevant Modern Award, and the Fair Work Act. Whereas if a person is a volunteer, then there is no
need to pay them.

If you are unsure whether someone in your business is a volunteer and need help, please don’t hesitate to contact
the National Retail Association’s Workplace Relations Team on 1800 445 522 for further assistance.

Another question that we receive from some employers is what they can do if an employee with a disability is not
able to perform as effectively as other employees because of their disability, even with reasonable adjustments?
While an employer has the option to dismiss or redeploy an employee who is not performing to the expected
standard, or who cannot perform the inherent requirements of a role, there is another option available where an
employer may wish to retain the employee, but cannot afford the loss of productivity; this is called the Supported
Wage System.
The Supported Wage System is a framework that permits employers to pay employees with a disability at a reduced
percentage of the relevant minimum wage on the basis of their productive capacity relative to employees without a
disability, with a minimum amount payable of $87 per week.

Notably, an employer can only implement a supported wage If they would employ that person under a modern
award or agreement that provides for wages to be paid pursuant to the Supported Wage System. As a first step,
employers should check their relevant industrial instrument to confirm whether such provisions are included.
For employers of award-free employees, the Fair Work Commission has traditionally included such provisions in
national minimum wage orders, and so they will generally also be able to access the Supported Wage System as well.
You can apply for an employee to be covered by the Supported Wage System on the JobAccess website, and your
employee with a disability will need to have an assessment from a qualified assessor.
A government assessor will come to the workplace, and meet with the employer and employee at a time that suits
everyone on an employee’s regular workday when they are doing their usual job.
The assessor will look at information such as the employee’s job description, time spent on each duty, hours and
days worked, break times and the level of supervision required.
The assessor will also make sure that any modifications that the employee needs to do their job are in place.
The assessor will determine the employee’s assessed capacity as a percentage, and once finalized, an employer will
be able to pay their employee at an equivalent percentage of their relevant rate of pay.
For example, an employee with an assessed capacity of 70% would receive 70% of the relevant rate of pay for the
role they are performing.
For more information on the Supported Wage System, check out the JobAccess website, or call a JobAccess advisor
on 1800 464 800.

Is there any government support for employers to employ people with disabilities?
Yes – there are lots of avenues for support that employers and employees can access where an employee has a
disability.
First, there is Work Based Personal Assistance. This assistance reimburses the costs of workplace support services for
people who need regular help at work to eat a meal, use the toilet or take medication due to their disability or
medical condition. You can access this via a Disability Employment Services provider in your area.
Next up, do you have an employee who has a medical report to say they are unable to use public transport? Your
employee may be eligible for the Mobility Allowance to travel to and from home for paid work, voluntary work or
training. The Mobility Allowance can also cover costs of travelling for work-related activities.
If you have an employee who is finding it difficult to fulfil the essential requirements of their job due to the impact of
their injury, disability or health condition, with their permission, you can access Work Assist on their behalf. Work
Assist can be accessed through a Disability Employment Services provider, and can provide free: Advice about job
redesign; A comprehensive workplace assessment; Free workplace modifications and/or special equipment; Support
in the workplace to help manage the impact of injury, disability or health condition; and Interventions such as
occupational therapy, pain management, physiotherapy and psychological counselling.
And last but not least, there’s the Employment Assistance Fund which gives financial help to eligible people with
disability and mental health conditions and employers to buy work related modifications, equipment, Auslan
services and workplace assistance and support services.
The EAF could help to buy work related modifications and services like: the cost of making adjustments to your
physical workplace, modifications to work vehicles, Auslan interpreting services, specialist services for employees
with specific learning disorders and mental health conditions, disability awareness training for the workplace
(including deafness awareness), mental health awareness and first aid training.
For more information on the Supported Wage System, check out the JobAccess website, or call a JobAccess advisor
on 1800 464 800.

Can I ask an employee to disclose all disabilities and medical conditions before working for me?
The answer is no. It is not appropriate to ask an employee to disclose any and all disabilities or medical conditions
before working for you, as this could amount to and indicate that discrimination is occurring.
However, it is permissible to ask more specific questions about whether a candidate may have a disability or medical
condition that can affect or impact their ability to perform the essential elements of the role, or the health and
safety of the workplace.
This is because you have limited the question strictly to the requirements of the role, and whether they can perform
it, which is an exception to discrimination. However, if asking this question, you should ask a follow up question as to
what reasonable adjustments can be made to ensure they are able to perform these requirements.
If you are worried about how to approach the issue of disability in your recruitment process, please don’t hesitate to
contact the National Retail Association’s Workplace Relations Team on 1800 445 522 for further assistance.

Do I have to do whatever is asked for when it comes to making workplace adjustments for an employee with a
disability?
Not necessarily. Employers are required to make reasonable adjustments for employees to accommodate their
disabilities. However, an exception to this is where making an adjustment would be an unjustifiable hardship, or
unreasonable.
However, employers should ensure that they explore every avenue for funding and the viability of making an
adjustment where they are considering rejecting a request for an adjustment to be made.
Sometimes employers may act rashly and decide that the adjustment would be too difficult, before they have even
considered any new solutions or government funding that may make the adjustment straightforward and cost-
effective. Where an employer incorrectly rejects such an adjustment on this basis, an employer could face a
potential discrimination claim.
If you need advice of guidance on making adjustments in your workplace, we recommend you contact JobAccess for
more information and guidance about how you can implement adjustments into your workplace.
If you’re not sure about how to handle refusing an adjustment requested by an employee, and need further
guidance, please don’t hesitate to contact the National Retail Association’s Workplace Relations Team on 1800 445
522 for further assistance.

Thank you for watching our series of presentations on employing people with a disability. We hope you’ve enjoyed
learning about the benefits of creating an accessible and inclusive workplace for people with disabilities, and your
obligations as an employer. If you still have questions about how you can welcome employees with a disability into
your workplace, we recommend looking at the JobAccess website for more information. And if you’re not sure about
how to handle the legal aspects of employing people with a disability, please don’t hesitate to contact the National
Retail Association’s Workplace Relations Team on 1800 445 522, and one of our experienced advisors will be there
to guide you.