Where the rights of workers and persons living with disability intersect: Reconciling ‘competing’ legal frameworks and suggested solutions

Dr Dru Marsh1,2, Professor Christine Bigby3

1School of Business, UNSW Canberra, Canberra, Australia, 2Golden City Support Services Inc., Bendigo, Australia, 3Living with Disability Research Centre, La Trobe University, Melbourne, Australia

Background
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability highlighted use of restrictive practices to manage workplace risks when supporting people with intellectual disabilities. More understanding is needed about ways disability and work health and safety legislative schemes characterise and control risks to staff associated with people who display challenging behaviours, to identify practical ways of achieving both safe workplaces and meaningful lives for people with intellectual disabilities.

Method
A comparative analysis of objectives and mechanisms in work health and safety and disability support schemes was undertaken to identify disparities between design and practice of those laws. Duties imposed by worker health and safety schemes were compared to objectives of disability legislation, and case law and documents published by regulators of both schemes were reviewed to identify potential conflicts involving people with intellectual disability.

Results
Work health and safety law establishes holistic duties of care which emphasise risk assessment and control measures that ‘engineer-out’ risks to workers (e.g., protective barriers). This works well for some workplace settings but may adversely impact quality of life for people with intellectual disability in support settings.

It was also clear that well-implemented, person-centred support is intended as an alternative to restrictive practices to manage risks to workers whilst maintaining quality of life for those they support.

Implications
These results highlight a need to facilitate greater exchange of experience and ideas between regulators of disability support and work health and safety to ensure health and safety of all persons.


Biography:

Dru is a practicing lawyer, public servant and researches duties-based legal schemes out of UNSW Canberra. He has advised on the design of duties-based legal schemes, represented private, government and non-government organisations in safety and environmental litigation and is chair and president of Golden City Support Services Inc.