Disability and the Law
Recent changes in the
employment law landscape for
people with disability
Elizabeth Meyer
NSW Disability Discrimination Legal Centre Inc
5 May 2010
Overview
1. Fair Work Act 2009 (Cth)
• Referral of NSW industrial relations powers
• General Protections Provisions
• National Employment Standards
2. Disability Discrimination Act 1992 (Cth)
• Failure to make reasonable adjustments
• Requests for information
Fair Work Act 2009 (Cth)
Referral of NSW industrial relations powers
As of 1 January 2010 most employees in NSW covered by
Commonwealth workplace laws
Excludes
- NSW public sector employees
- Local government
“State system” employees:
disability discrimination law (Cth & NSW) & unlawful
termination (dismissal only) (FWA)
Fair Work Act 2009 (Cth)
General Protections Discrimination provisions
Section 351
An employer must not take any adverse action
against an employee or prospective employee
because of the person’s physical or mental
disability or carer’s responsibilities
Fair Work Act 2009 (Cth)
General Protections Discrimination provisions
Section 351(2): doesn’t apply to action that is
a.not unlawful under any anti-discrimination
law in force in the place where the action is
taken
b. taken because of the inherent requirements of
the particular position concerned
Fair Work Act 2009 (Cth)
What is ‘adverse action’?
• dismissing or refusing to employ someone
• discriminating against them (including in
terms/conditions of employment)
• demotion/altering position
• access to training or other benefits
• dismissing due to temporary absence because
of illness/injury
Fair Work Act 2009 (Cth)
General protections (discrimination) provisions
Section 352
An employer must not dismiss
an employee because the employee is
temporarily absent from work because of
illness or injury of a kind prescribed by the
regulations.
Fair Work Act 2009 (Cth)
General protections (discrimination) provisions
Regulation 3.01
• Medical certificate or statutory declaration
provided within 24 hours of commencement of
absence (or a reasonable amount of time)
Exclusions:
• Absence is for more than 3 months (in total), and
• Employee is not on paid personal/carer’s leave
Fair Work Act 2009 (Cth)
What types of disability are covered?
s351 - “physical or mental disability”
Is this as broad as “disability” under state or
federal laws?
imputed, learning & intellectual, disease &
illness, aids & devices, assistance animals?
Fair Work Act 2009 (Cth)
Advantages:
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60 days from dismissal to make application
6 years for non-dismissal applications
Response must be lodged within 14 days – r16A
Should be faster than DD
FWA must conduct conference – s368
Advice on GP Court Application – s370
Courts – parties bear own costs, small claims jurisdiction
Shifting burden – s361
Civil remedies provision, 60 penalty units– s539
Fair Work Act 2009 (Cth)
Disadvantages:
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Definition of disability unclear
Timeframe may be too fast
Investigation- response form – r16A
Fee to apply – s367
Non-dismissal – conference must be held only if
parties agree – s374
• 14 days to apply to Court after certificate issued –
s371(2)
Fair Work Act 2009 (Cth)
National employment standards
• From 1 January 2010
• “Safety Net” of 10 minimum terms and
conditions of employment
• Civil remedy provisions for breaches (60
penalty units)
Fair Work Act 2009 (Cth)
Flexible work hours
A right to request flexible working
arrangements to care for a child under school
age or a child (under 18) with a disability.
Who?
Employed for 12 months (casuals on a regular
& systemic basis w. continuing expectation)
Fair Work Act 2009 (Cth)
What?
– Starting late or finishing early
– Moving to part-time
– Job share or splitting shifts
– Working from home
How?
– Make a request in writing
-- Set out what you want and why
Fair Work Act 2009 (Cth)
• Employers obligations
– Must respond within 21 days in writing
– Can refuse on “reasonable business grounds”
– Reason must be provided in the response
– Parties may come to an agreement or compromise
– If refusal doesn’t seem “reasonable” employee
can use other laws e.g. GP or DD
– Penalties do not apply to refusals
Fair Work Act 2009 (Cth)
Personal and carer’s leave
• Part-time and full-time employees
10 days paid personal/carer’s leave each year
(pro rata)
2 days paid compassionate leave per occasion
• All employees (including casuals)
2 days unpaid carer’s leave per occasion (after
paid leave if applicable is used).
Fair Work Act 2009 (Cth)
When?
– The employee is sick or injured
– The employee needs to care for an immediate family or
household member who's sick, injured or has an
unexpected emergency
How?
- Provide notice (as soon as practicable) incl. expected
duration
- Provide “reasonable” evidence to substantiate leave
Disability Discrimination Act
• Discrimination occurring after 5 August 2009
• Broad definition of:
- employee (including prospective)
- employment
- disabilities
- acts – interviewing, hiring, dismissing,
promoting, transferring, training, benefits,
terms & conditions,
Disability Discrimination Act
Requirement to make reasonable adjustments
• Anything that helps a person with disability
have equal access to the workplace
• Adjustment is reasonable if it doesn’t cause an
“unjustifiable hardship”
• Might include flexible working arrangements,
provision of aids, devices and adaptive
technology, modification of premises, leave
Disability Discrimination Act
Requirement to make reasonable adjustments
Direct Discrimination:
• Employer does not make, or proposes not to
make, reasonable adjustments for an employee
• Failure to make the reasonable adjustments results,
or would result, in less favourable treatment of the
employee compared with an employee in a similar
circumstance
Disability Discrimination Act
Direct Discrimination – Example
Julie has cerebral palsy. She works as a researcher in a laboratory. Each
year, Julie and her colleagues are given an allowance each so that they can
attend conferences to either present papers or increase knowledge.
Julie’s colleagues usually attend 3 conferences each per year with their
allowance. Julie however needs to travel with an attendant to help her
with tasks such as dressing and eating. Because Julie’s allowance must also
pay for her attendant to travel with her she usually only attends 1 or 2
conferences a year.
Julie asks her employer to give her a larger allowance so she can attend
the same number of conferences as her colleagues.
Disability Discrimination Act
Requirement to make reasonable adjustments
Indirect Discrimination:
• employee must comply with a requirement or
condition (which is reasonable in the circumstances)
• because of the disability employee can only comply if
employer made reasonable adjustments (RA)
• employer doesn’t or proposes not to make RA
• failure to make RA disadvantages persons with
the disability
Disability Discrimination Act
Indirect Discrimination – Example
Mark is an editor. Mark also has schizophrenia. He finds it
difficult to concentrate in the busy office where he works and
for the past few weeks he has not managed to achieve targets
set by his boss. He has been told that if he doesn’t start
meeting targets he will be dismissed.
Mark asks his boss whether he can rearrange his work so that
he can either start later in the day and work back so he is at
work when the office is quieter or spend some time working
from home.
Disability Discrimination Act
Requests for information
It is unlawful for an employer to request or require an
employee to provide information if:
the employer requests or requires the information in
connection with, or for the purposes of, unlawful
discrimination and
i. people without the disability wouldn’t be requested or
required to provide the information; or
ii. the information relates to the disability.
Disability Discrimination Act
Requests for information - example
Doug is a labourer and has epilepsy. One day he has a
epileptic seizure at work. After time off he returns to work
with a clearance from his doctor saying he is fit for all duties.
His employer asks a lot of questions about his driver’s licensehe shows them the condition marked on the back of his license
which requires he get an annual medical.
His employer tells Doug that he must get a letter from the RTA
stating the dates on which he has had medicals in the past
and that he has always passed those medicals or he will not
be allowed to drive at work anymore.