Inclusive employment: What does the law say?
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What does the law say?
Equality of opportunity in employment is enshrined in federal and state legislation in Australia. Businesses that discriminate against a person in employment because of a disability may be breaking the law. This covers all aspects of employment, from recruitment through to career progression.
Some basic familiarisation can demystify the legal requirements and inform the development of more inclusive policies and procedures. Having an understanding of your obligations under the law is important regardless of where your business is up to in its diversity journey.
Disability Discrimination Act 1992.
The Disability Discrimination Act 1992 makes it unlawful to discriminate against a person because of a disability in many areas of public life including employment, education, obtaining services and accessing public places.
According to the Australian Human Rights Commission, to be covered by the act, a disability may be temporary or permanent and can include intellectual and physical disabilities, learning disabilities, sensory or behavioural disabilities, workplace injuries, medical conditions and diseases or illnesses.
The act provides protections for people with a disability from discrimination in employment and specifies rules covering employees, commission agents and contract workers. There are also provisions for employment agencies.
Discrimination in employment.
It is unlawful for an employer or person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability:
- In the arrangements made for the purpose of determining who should be offered employment
- In determining who should be offered employment
- In the terms or conditions on which the employment is offered.
It is also unlawful for an employer or their representative to discriminate against an employee on the grounds of their disability related to:
- The terms and conditions of employment
- Denying or limiting access to opportunities for promotion, transfer or
- training or any other benefits
- Subjecting the employee to any other detriment.
A failure to make appropriate accommodations for a person with disability, so that they are able to work or participate equally in some aspect of work, could amount to direct or indirect discrimination. (See NSW Public Service Commission – Anti Discrimination Laws).
- If because of a disability the person is unable to carry out the inherent
- requirements or the work even if reasonable adjustments were made
- Differences in the provision of insurance and superannuation
- Combat duties and peacekeeping services in the Australian Defence
- Forces or Australian Federal Police
- Performing domestic duties in an employer’s residence
- If avoiding the discrimination would pose an unjustifiable hardship on
- the employer.
Employers must also be proactive about avoiding and preventing harassment of employees with a disability.
For more information, check out the Australian Human Rights Commission’s Disability Discrimination Information sheet.
What are reasonable adjustments?
Reasonable adjustments are designed to eliminate barriers to enable people with disability to more fully participate in employment.
Under the Disability Discrimination Act, employers are required to make reasonable adjustments to accommodate a person’s disability so that they enjoy equal opportunity with others, providing this does not pose unjustifiable hardship on the employer.
Reasonable adjustments may include:
- Changing work hours or methods
- Modifying equipment
- Implementing new or additional software
- Purchasing new equipment
- Changing the format of onboarding or training documentation
Fair Work Act 2009.
The Fair Work Act provides a range of workplace protections for employees including the right to be free from unlawful discrimination. These rights are protected from unlawful actions including adverse action, coercion, undue pressure in relation to guaranteed earnings, dedications from wages and individual flexibility arrangements under modern awards and enterprise agreements.
Under the act, it is unlawful for an employer to take adverse action against a person who is an employee, a former employee or prospective employee because of the person’s physical or mental disability.
It’s worth spending some time familiarising yourself with what the act defines as “adverse action” which includes dismissal, altering a position to the detriment of the employee, and discrimination against an employee in terms and conditions of employment. For more details, visit the Fair Work website.
State and territory legislation.
Additional anti-discrimination laws have also been enacted in each Australian state and territory that relate to various types of discrimination in a wide range of circumstances including employment.
For details, check out the Quick Guide to Australian Discrimination laws.
United Nations Convention on the Rights of Persons with Disabilities.
Australia is a signatory to the UN Convention on the Rights of Persons with Disabilities which recognises the rights of people with a disability to “work, on an equal basis with others”.
This includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities.
While the UN convention is not binding, many of its principles are enshrined in legislation. It also offers some guiding principles that are useful for businesses.
Signatories to the convention commit to legislation that:
- Prohibits discrimination on the basis of disability relating to all matters of employment including recruitment, continuation, advancement and safe working conditions
- Protects the rights of people with a disability, on an equal basis with others, to just and favourable conditions of work including equal employment opportunities and equal remuneration for work of equal value
- Enables access to technical and vocational guidance and continued training
- Ensures reasonable accommodation is provided to persons with disability in the workplace
- Promotes the acquisition of work experience in the open labour market.
While it is legal to specifically target people with disabilities for roles in Australia, it gets a little tricky if you want to target people with a certain type of disability.
For example, if you want to target a role specifically for people with autism. It is best to obtain legal advice if you want to explore this option.
An employee or prospective employee is only required to disclose they have a disability if it will affect their ability to do their job or impact their ability or the ability of others to work safely. Otherwise, disclosure is completely at the discretion of the employee or prospective employee.
If an employee does disclose a disability:
- The employer must consider appropriate responses including specific training or work adjustments. Disclosing a disability often involves sharing information of a personal and sensitive nature and people have different levels of comfort around sharing such information.
- The employer cannot treat the person less favourably than a person without disability would be treated in the same circumstances.
- The employer is obliged to keep information about the disability confidential. Written consent is required from the employee before this information can be disclosed to others. (See Australian Government – Supporting staff to disclose a disability.)
The information provided here is general in nature only and does not constitute business financial or legal advice. The information has been prepared without taking into account your business objectives, financial situation or needs. Before acting on any of this information, you should consider the appropriateness of the information having regard to your business objectives, financial/legal situation and needs.