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Comments on submissions in response to first draft employment standards

Comments on submissions in response to first draft employment standards

These comments were prepared in 1996 by HREOC staff acting as secretariat to the subcommittee of the National Committee on Discrimination in Employment and Occupation considering development of disability standards on employment under the DDA. This document summarises submissions received on the first draft of standards and provides commentary on those submissions.

General

Who is protected

Who has obligations

When obligations apply: List of employment matters

Direct discrimination

Indirect discrimination

Reasonable adjustment

Inherent requirements

Unjustifiable hardship

Harassment

Discriminatory questions

Exceptions

Procedural obligations

Review mechanism

General

This paper outlines issues raised by submissions responding to the draft Employment Standards released in July 1996 by the sub-committee. Comments and recommendations by the secretariat are also included.

Premature to draft standards?

A number of submissions argued that it was premature to develop standards without waiting for further development of case law under the existing provisions of the DDA to define the effect of those provisions.

Secretariat comment:

The uncertain effect of major provisions of the DDA does present difficulties for development of Standards on the basis agreed to date, that is, that they should reflect the existing effect of the DDA.

However, this same uncertainty may be regarded as confirming the need for Standards.

Previous papers in this process have indicated that precisely the purpose of the inclusion of the standards making power in the DDA is to avoid the need for protracted, expensive, fragmentary and uncertain processes of litigation to determine the legal content of DDA rights and obligations. This does not need to preclude flexibility and development in the application of those obligations to diverse and changing employment circumstances.

It should also be noted that in the near future the development of case law under the DDA will be solely through the courts, as with legislative amendments the role of HREOC as a tribunal under the DDA will cease. This is likely to reduce the number of cases which are pursued to decision and hence reduce the rate (while increasing the expense) at which any useful precedents emerge through case law.

Standards or guidelines

Submissions which expressed opposition to introduction of Standards at present generally supported the development of guidelines instead. Some of these submissions called for further consultation on the appropriateness and structure of guidelines.

Secretariat comment:

The intention previously expressed by HREOC was to develop Standards first, to provide a clearer and authoritative legal basis for future compliance efforts including development of more detailed and practical guidance material. However, if development of Standards is suspended or subject to further substantial delay, earlier development of guidelines by HREOC is an available option.

It should be noted that there is no legal requirement in the DDA for consultation, much less for agreement by any body other than HREOC, before guidelines are developed (unlike Standards). While as a matter of policy HREOC does consult (but not necessarily seek agreement by) interested parties before issuing guidelines under the DDA, the view could well be taken by HREOC, when and if it considers the issue, that sufficient consultation for this purpose has already occurred in the course of consulting on the same issues in the context of Standards development.

Clarity and plain English

While some submissions commended the draft standards for clarity, others stated in strong terms that plain English drafting had not been achieved and was required. Some submissions commented that the Standards would be subject to less dispute if they were shorter. Other comments however sought inclusion of significantly more detail and examples.

Secretariat comment:

These different perceptions may indicate the difficulty of drafting one document which addresses all needs. Some comments appear to have overlooked statements in the accompanying materials that the Standards were intended only as the regulatory instrument and not to substitute for further guidance and information material as required.

The Secretariat considers that it would be useful for a revised draft to address particular points identified as presenting particular difficulty, and to take up suggestions for provision of more examples.

While some submissions raised concerns with complexity of structure, no clearly more effective alternative appears to have been provided. It may be possible however for a revised draft to be clearer in this respect also (in particular through the use of illustrative examples, including to link the concepts of discrimination and reasonable adjustment presented and their application to different employment issues).

Level of prescription

Most submissions supported the non-prescriptive approach taken in the draft Standards. (Exceptions concerned specific issues rather than the document overall and are discussed under headings for those specific issues.) A number of submissions requested that more detail be provided by including guidance material and examples within Standards.

Secretariat comment

These issues would be addressed in the approach recommended for a revised draft.

Compliance costs

Some submissions raised issues of costs of compliance as needing to be addressed in Standards.

Secretariat comment:

Compliance costs would need to be addressed in the Regulatory Impact Statement which would be required to accompany the presentation of Standards for authorisation.

It should be clear, however, that the Standards, which do not (and cannot) impose additional procedural or reporting requirements, and are intended to reflect the existing level of rights and obligations under the DDA, should not impose additional compliance costs beyond what compliance with the DDA would cost, which is already required.

If anything, relevant compliance costs might be hoped to be reduced through employers and people with a disability not having to hire barristers to tell them what the DDA might mean.

Who is protected

Application only to employment of people with a disability

Some submissions called for standards to apply uniformly to contract workers as well as employees. Similarly some comments condemned the failure of the draft Standards to apply to carers and other associates.

Secretariat comment

The notes accompanying the draft Standards explained that the power to make Standards in this area applied only in relation to employment, and only to people with a disability rather than including associates.

Revised drafting could, however, clarify applicable concepts of employment and contract work, taking into account the suggestion made in one submission to refer to "independent contractors" rather than contract work to avoid the incorrect impression that workers employed under individual contracts of employment are excluded. Clarification could also be added that Standards, being intended to reflect the existing effect of the DDA, could be used as a guide to obligations which continue to apply under the DDA including in relation to independent contractors. This might provide sufficient response to concerns that Standards applying only to employment and only to people with a disability could undermine or confuse the position of carers and other associates and of persons other than employees.

Request for people with an intellectual disability to be excluded from Standards

One submission argued that people with an intellectual disability should be excluded from the Standards because of concern that people requiring high levels of assistance or adjustment would fall below the line of rights and obligations settled on in a process of negotiation.

Secretariat comment:

This concern appears of limited relevance to Standards which adopt a non-prescriptive approach and are aimed at reflecting the existing provisions of the DDA. It may be a more relevant and intelligible response, though that is not to accept it as correct, regarding other standards with a higher degree of technical specification. Unlike an issue such as what proportion of toilets should be accessible, resolution of what the concept of discrimination or reasonable adjustment in employment means is not properly characterised as one of "negotiation" or making deals, but of legal reasoning and argument on the basis of an existing law (itself the product of negotiations and deals, but now legally binding). (In such argument, representation of diverse points of view is of course important; hence the unusual amount of time and money spent to date in ensuring that interests with any arguments or expertise to put into the consideration of Standards in this area could contribute those arguments and that expertise if they chose.)

To the extent that Standards in the form of the draft Employment Standards fail to require certain measures which could be particularly favourable to some people with an intellectual disability (such as requiring job restructuring without being restricted by the inherent requirements of a job taken as given), this is because the same failure is regarded as already present in the DDA.

No apparent benefit results from being omitted from the Standards so as to preserve the application of the existing DDA provisions, unless the Standards in fact fail to reflect the existing provisions accurately. In that case, omitting one group but covering others would not appear an appropriate response.

It is also difficult to see how exclusion of people with an intellectual disability from coverage by an otherwise applicable Standard would not in itself be discriminatory. Noting that the submission concerned concedes that the position of arguing for such exclusion is yet to be tested with people with an intellectual disability themselves, the Secretariat suggests that any drafting should continue on the basis of inclusion of all people with a disability, until and unless clearer reasons for any limits appear.

Short term and "partial" disability

One submission requested that the Standards deal specifically with short term disability and with "partial" disability.

Secretariat comment

It is difficult to see what provision in these respects is possible or necessary other than an explanatory comment that disability covered by the DDA need not be permanent or "total", although the latter term would seem to have no useful meaning beyond the confines of benefits legislation.

Work acquired disabilities

One submission from a State Government department assumed that work acquired disabilities were excluded from coverage under the DDA, apparently because of an alleged effect of workers' compensation laws, and wanted Standards to state this position more clearly.

Secretariat response

There is no basis in the DDA for the position put by this submission. The previous papers issued by the sub-committee specifically pointed out that the origin of a person's disability did not determine their rights under the DDA. It may be regarded as a matter of concern that such a view is held or propounded by a major government department, and that in a State where issues of the interaction between the DDA and State laws on workers compensation have had considerable prominence.

Who has obligations

One submission requested clarification of responsibility for making reasonable adjustments to provide accessibility of workplace or employment based training.

Secretariat comment

Clarification in this respect might best be provided by example or illustration rather than by further prescription.

When obligations apply: List of employment matters

Some submissions regarded the list provided in section 6 of the draft as very useful. Other submissions condemned the inclusion of this list, particularly regarding terms and conditions of employment, in strong terms.

Secretariat comment:

No persuasive reasons appear from submissions to remove the list in section 6 of the draft which many commenters found useful. The recommended approach of making the application to this material of the concepts of discrimination and reasonable adjustment clearer by providing examples (discussed below by reference to "Direct Discrimination") may address concerns or confusion in this area.

Confidentiality of medical information

One submission called for greater emphasis on confidentiality of medical information held by employers.

Secretariat comment

Revised drafting could more specifically address improper disclosure as a form of less favourable treatment. Consistent with the general preference for non-prescriptiveness, this might most appropriately be done by way of examples drawn from complaint experience rather than by codifying confidentiality requirements.

Direct discrimination

Practical application of discrimination concepts

Some comments indicated the draft Standards would be very helpful in making the concept of discrimination clearer. Others however thought the draft added nothing, other than possible confusion, to the existing section 5. Some submissions (both among those that considered the draft useful but in need of improvement and among those not finding it useful) called for inclusion of examples of less favourable treatment.

Secretariat comment:

The draft Standards share with the DDA itself the difficulty of presenting abstract concepts of discrimination which have then to be applied in areas specified separately. This could be avoided by presenting each area of employment covered (recruitment, dismissal, terms and conditions, etc.) as a self contained code incorporating its own (implicit or explicit) definition of discrimination. While this might make the document structurally simpler, it would however make the substantive Standards very much longer, which a number of submissions have emphasised as a concern for accessibility to employers and other users.

Discussion in the committee contemplated that examples and other guidance would be added to the draft once the substantive provisions were further developed on the basis of submissions; and that this would be useful throughout the document rather than only in relation to direct discrimination. Few of the submissions expressing the need for more concrete material in the draft actually provided drafts or much detail of the material desired. Suggestions from committee members would be welcome to assist the secretariat in this area.

Less favourable includes reasonably regarded as less favourable

Several submissions on behalf of government departments, including one Attorney-General's department, opposed the inclusion of treatment "reasonably regarded as disadvantageous" within the definition of less favourable treatment, on the basis that this expanded current obligations.

Secretariat comment:

The concern expressed is based either on a misunderstanding of this provision of the draft, or on lack of familiarity with relevant case law explaining when different treatment will be Aless favourable" and directly contradicting the assertion made in these submissions.

Case law in the Federal Court, as well as from Australian and overseas tribunals, indicates that where there is dispute as to whether different treatment is less favourable rather than just different, the preference of the person to whom the treatment is applied (as between their own treatment and that which is or would be accorded to persons without the disability, or of a different race or gender as the case may be) should be given weight unless this preference is clearly unreasonable. Thus in a case under the Sex Discrimination Act concerning marital status, Commonwealth of Australia v. The Human Rights and Equal Opportunity Commission, Michael Dopking and Lance Thomas [ (1993) 199 ALR 133], Justice Wilcox (with whom, on this point, Justice Lockhart and Chief Justice Black agreed) said:

I do not think it is legitimate to deny that a person is less favourably treated simply because someone else might prefer the treatment offered by the alleged discriminator than that provided to persons of a different marital status. Where there are both advantages and disadvantages of each course of treatment, whether one alternative is more or less favourable than the other will usually be a matter of personal preference.

Including an example in relation to this provision may remove the scope for further misunderstanding, although familiarity with the cases might also have been expected to given the source of the submissions concerned.

Distinctions based on productivity

One comment described as an "alarming oversight" the fact that draft section 7.4, which states that distinctions based on productivity (which cannot be remedied by reasonable adjustment) are not discrimination if applied equally, applies not only to pay but to other areas of terms and conditions. Other submissions also expressed concern about this provision.

Secretariat comment

This was not in fact an oversight in drafting No reason under the DDA is apparent why, if employers may reward higher productivity with higher pay (as they may so long as there is no discrimination in measurement of productivity or in access to opportunities to achieve higher productivity, including any reasonable adjustments required being made), they may not also or instead reward higher productivity with other benefits, or use productivity as the basis for decisions about continuing or terminating employment.

This aspect of the draft was based on the fact that if productivity based distinctions are applied equally, they cannot constitute direct discrimination, and the view that (so long as reasonably applied) they will always be reasonable, so as not to constitute indirect discrimination either, notwithstanding possible disparate effect, and whether or not they would in any event be defensible by reference to the inherent requirements of the job.

The view that productivity based distinctions which are equally and reasonably applied must always be accepted as reasonable under the DDA is not inevitable, in the sense that no express provision in the DDA directly compels it. It is based on: (1) the clear assurances in the second reading speeches on the DDA that the Act did not prevent the best person being selected for the job; (2) the logic, if this is accepted, that the best person "at" the job may also be rewarded or retained for this.

However, the suggestion made by one submission for redrafting of section 7.4 to make clearer that productivity measures are acceptable only if they are, or would be, equally applied, and if the period over which productivity is measured is reasonable, may be appropriate to take up in a revised draft.

Boundaries of direct and indirect discrimination

Several comments indicated draft section 7.5 was confusing. These commenters appeared to regard this draft section as an attempt to define indirect discrimination.

Secretariat comment:

Draft section 7.5 was in fact an attempt to clarify the limits of the concept of direct discrimination, by pointing out that less favourable treatment presupposes different treatment than is or would be accorded to people without the disability. Indirect discrimination was referred to here not to define it (that is done, expressly and not surprisingly, under the heading AIndirect discrimination") but, so as to ensure that the limited reach of the concept of discrimination in this respect does not mislead employers and others, to emphasise that treatment which is or would be uniformly applied can nonetheless be discriminatory if it is unreasonable and has a disparate impact.

Provision of examples in this area might be the best way to remove scope for confusion in this area, together with minor rewording.

Indirect discrimination

One submission commented that the concepts of treatment having less favourable impact and requirements for reasonable adjustment did not constitute an adequate redefinition of indirect discrimination.

Secretariat comment:

Submissions did not specify in what respects the draft was thought to be inadequate or inaccurate in its approach to the concept of indirect discrimination. The principal problem in this as in other areas of the draft may be one of clarity, which provision of examples, as suggested by a number of submissions, could address.

Reasonable adjustment

Appropriateness of including reasonable adjustment in Standards

Some comments welcomed the confirmation and clarification given to obligations to make reasonable adjustment, although a number of comments indicated that examples were needed. One submission (to which a number of others referred) stated, however, that reasonable adjustment needed to be considered on a case by case basis rather than included in a Standard.

Secretariat comment

The distinction thought to exist between case by case consideration and inclusion in a Standard does not exist as a matter of necessity or, in the secretariat's view, in the draft issued. The purpose and effect of this part of the draft is to provide principles to assist in and promote case by case consideration of needs for reasonable adjustment, rather than legally displacing such consideration as more prescriptive standards would do; or leaving such consideration as frequently not occurring at all for lack of clear legal statement that adjustment is required, or often occurring only in the course of disputes after the fact (with limited benefit except perhaps to lawyers and other specialists in discrimination issues), at least partly due to lack of clear principles announced in advance as authoritatively applicable.

The term reasonable adjustment

A number of submissions opposed reference to "reasonable" adjustment on the basis that if a person can perform the inherent requirements of a job, unjustifiable hardship is the only limit on obligations to make adjustments, and any reference to "reasonable" confuses the issue. Some submissions referred to reasonable adjustment as a term of the 1980s beyond which the DDA had moved.

Secretariat comment:

Similar concerns were expressed before the release of the draft.

The secretariat continues to view these concerns as based on an inaccurate reading of the DDA, since, as previously explained in briefing to the sub-Committee, inherent requirements and unjustifiable hardship are not the sole limits on required adjustments, and in particular since in many situations the obligation to make reasonable adjustments depends on the prohibition of indirect discrimination, which of course uses the term "reasonable".

The secretariat does not believe, however, that assertions should be accepted that use of the phrase "reasonable adjustment", as a term of art defined in the draft Standards as having only those limits expressly provided for, could accurately or reasonably be interpreted as importing an additional requirement on people with a disability to demonstrate that an adjustment which satisfies all the conditions provided in section 9 is also reasonable. An explanatory note to this effect could be added if thought necessary.

Submissions did not propose any clear alternative term which would be likely to be more effective in promoting the concept to employers, beyond proposing reference simply to "adjustments".

Despite statements referring to "reasonable adjustment" or reasonable accommodation as outdated 1980s terminology, the term Areasonable adjustments" was in fact used in the second reading speech on the DDA, while the phrase "reasonable accommodation" appears extensively in the regulations and promotional material issued through the 1990s by the U.S. Equal Employment Opportunity Commission, as well as in the Americans with Disabilities Act itself. It may also be worth noting that no comments on the supposedly dated nature or undermining effect of the terms "reasonable adjustment" and "reasonable accommodation" were received during the preparation or after the publication of HREOC's Employer Manual or other material released during the 1994 public awareness campaign, despite the prominent use of those terms therein.

Accredited interpreters

Several submissions argued that the reference to interpreters as a form of adjustment should be to "accredited interpreters".

Secretariat response

In response to similar concerns prior to the release of the draft, the secretariat noted that a reference which treated or appeared to treat interpreters as the only form of interpreting permitted or required would remove any entitlement to other forms of interpreting which, though generally less preferred, might in particular circumstances be sufficiently effective where accredited interpreting is simply unavailable or would impose unjustifiable hardship.

The substance of the desire to see accredited interpreting provided where required would appear able to be addressed by the requirement to consider a person with a disability's preferred form of adjustment, as well as other reasonably available information, both of which in relevant cases would point to needs for and benefits of use of a particular standard of interpreting.

Concerns in this area might also be addressed, without the adverse consequences previously pointed out by the secretariat of defining interpreting exclusively to mean accredited interpreting, by giving examples where high standards of interpreting could be particularly important (such as disciplinary proceedings and in provision of training).

Disclosure of disability

A number of submissions expressed concern regarding a need to disclose disability before a requirement for reasonable adjustment arises. One submission, for example, complained that the draft Standards contained an assumption that a person with a disability must disclose their disability before any obligations arise to make reasonable adjustments.

Secretariat comment:

This is not the effect of the draft Standards, as the Secretariat expected to be clear from the inclusion among required adjustments not only those which an employer is aware are needed but also those of which the employer should reasonably be aware.

In some cases, of course, without disclosure of a disability, and / or of a need for adjustment, it will not be possible to say that an employer should reasonably have been aware of the need; but this does not mean that the draft Standards, rather than the realities of the circumstances, impose any requirement of disclosure.

Information provided or failed to be provided

A number of submissions objected to the reference in the draft standards to "information provided or failed to be provided" by a person with a disability among the factors to be considered in determining if an employer should reasonably have been aware of a need for reasonable adjustment.

Secretariat comment:

As noted above, the draft Standards do not impose any duty of disclosure so as to invalidate an otherwise existing right to have adjustments. This provision simply states the point that what an employer was or was not told will be relevant to (though not necessarily decisive of) what the employer should reasonably have known.

It is not, despite assertions in some submissions, contrary to the reasoning or decision of Sir Ronald Wilson as President of HREOC in X v McHugh. In that case Sir Ronald did, in fact, treat as relevant the fact that the complainant had not disclosed the nature of his illness to the employer, and referred to the difficulties this presented for the employer; but he went on to find unlawful discrimination had occurred in dismissing the complainant.

As one submission conceded, the decision in X v McHugh does not in fact concern reasonable adjustment. The complainant was not seeking accommodation of an ongoing disability, since at the time of his dismissal he had responded successfully to treatment. What he was seeking, and what the decision required, was that he should not be judged on the basis of past behaviour, caused by his disability, without a fair opportunity to demonstrate following his successfully undertaking psychiatric treatment, that he could now perform the inherent requirements of the job.

Had the complainant in X v McHugh been seeking ongoing adjustments, but remained unwilling or unable to disclose (or to permit his doctor to disclose) the reason why those adjustments were required, the result might well have been different. In such a case under the Americans with Disabilities Act, concerning a request for transfer to accommodate a disability which the complainant would not disclose the nature of, the court (whose decision was affirmed on appeal to the U.S. Court of Appeals), commented:

The court can find no support for such a transfer because neither the plaintiff nor his doctor described the nature of his illness. Without such information such a transfer may only have exacerbated the plaintiff's mental condition, whatever it was. It is undisputed that the defendant requested additional information so that an informed judgment could be made by the agency. Such information was never forwarded by the plaintiff or his doctor. [Lutter v Fowler 1986 WL 13138; 1 Americans with Disabilities Act Cases 861 ; affirmed 808 F.2d 137 (D.C. Cir. 1986)].

Difficulties in considering adjustments before employment

One submission argued that in some cases people may not be able to provide information about reasonable adjustments until they have been in the job for a short period.

Secretariat comment:

The draft emphasises information from the person with a disability directly concerned, because of the consistent position of disability community and other experts that such information is often of primary importance in making effective adjustments, both in employment and elsewhere. The draft does not, however, state or have the effect that a person with a disability must be able to specify an effective adjustment or lose the right to have an adjustment made.

The reference to consideration being required of "any" information provided by or on behalf of the person with a disability should make clear that provision of such information is not presupposed or made mandatory. An individual might not have such information to provide; or in some circumstances regarding potential employees, for example in publishing a general advertisement, there might be no realistic means of individuals telling employers about individualised requirements and solutions in advance.

The requirement for reasonable adjustment does not disappear in such cases: the general requirement in draft section 9 requires an adjustment if "an employer should reasonably have been aware an adjustment was required and possible" and directs attention to all relevant circumstances including "information, advice, equipment and methods reasonably available at the relevant time" and "inquiries which it would have been reasonable to undertake in the circumstances", rather than just information from the person with a disability concerned. Provision of examples may assist in removing concerns in this area.

However, the concern expressed in this submission may refer not to supposed limitations on sources of information, but more directly to the issue of a need which may sometimes exist for experience in a job before a person can identify or demonstrate effective means of reasonable adjustment in that job. While this concern appears less substantial than it would be if information from the person with a disability were in fact mandatory or the sole source of information required to be referred to, it may still present real problems for people with limited experience of work, who are pursuing new areas of work, or whose jobs are subject to technical or organisational change.

It is difficult to see how Standards (if they are to remain consistent with the DDA) could require a person to be given a job the inherent requirements of which they cannot perform, but may be able to in future, with an (as yet) unidentified adjustment.

What Standards could do, which would be valid and may be useful in addressing this issue, is to emphasise the requirement that people with a disability must be accorded equal access to training, transfer, acting or higher duties positions, traineeships, periods of trial in a position and other forms of opportunity to demonstrate or develop capacity in a position.

Part of this response could involve emphasising that if other employees are not required to be fully effective from day one in a particular requirement, full effectiveness against that requirement from day one will not be accepted as an inherent requirement of the job as against people with a disability. This is implicit in the reference to the work "actually required in practice" in the material on inherent requirements, but a more specific reference, possibly by way of example rather than prescription, may be appropriate.

Behaviour manifesting a disability

One comment suggested that "behaviour manifesting a disability" should be included in the factors to be considered in relation to whether an employer should reasonably have been aware of a need for reasonable adjustment.

Secretariat comment

The Secretariat suggests that this suggestion should be accepted. This would not mean that an employer was regarded as automatically on notice of a need for adjustment because of such behaviour, but would simply confirm it as relevant.

Adjustment within a reasonable time

A number of submissions expressed concern regarding the reference in draft section 9.4(b) to adjustments being able to be made in a reasonable time.

Secretariat comment:

In response to similar concerns expressed prior to the release of the draft, the Secretariat commented as follows:

Some reference similar to this point of the draft appears required despite the concern expressed. An adjustment itself may not impose unjustifiable hardship once it is made - for example, there may be no significant additional cost to specialised computer equipment once it is available - but what if a small employer must wait six months for it to be delivered, during which time the employee is unable to be productive but must be paid? The revised draft (section 9.4(b)) includes a statement that this exception does not excuse unreasonable delay by the employer.

Concerns in this area may be addressed by taking up the suggestion in one submission to reverse the order of the two statements in this provision, so that the primary statement becomes, rather than an exception, the requirement that reasonable adjustments must be provided without unreasonable delay, and the subsidiary statement would be that adjustments which cannot be provided within a reasonable time are not required as reasonable adjustments. This does not appear to involve any substantive change but may avoid misinterpretation of this provision as excusing or encouraging delay.

Training of co-workers

Comments identified training to co-workers (rather than only training of the person with a disability) as a form of adjustment which should be specifically referred to in view of case law.

Secretariat comment:

The secretariat recommends that this suggestion be accepted. As with other examples of possible reasonable adjustments, it would need to remain clear that such training is not a universal requirement for employing a person with a disability (since otherwise the effect of the Standards might be to increase the employment of trainers but decrease all other employment of people with a disability).

Re-assignment to another available position

One comment, while accepting that transfer to a different job is not generally required, suggested that reassignment should be required where another job is available.

Secretariat comment

The secretariat does not believe that any general requirement to assign a person to another position, available or not, can be found in the DDA where the person cannot perform the inherent requirements of the job for which they are applying or which they hold currently.

The draft identifies more specific situations where a requirement to reassign may exist. A revised draft could encourage reassignment more generally but in the secretariat's view could not require this.

Changes in inherent requirements as reasonable adjustment

One submission suggested that the statement that changes to the inherent requirements of a job was not required as a reasonable adjustment should be qualified to state that such a change was not required "in the ordinary course".

Secretariat comment:

Such a change does not appear consistent with the provision of the Discrimination (Employment and Occupation) Convention, on which the DDA is based in part, that distinctions based on the inherent requirements of a job Ashall not" be deemed to be discrimination.

A revised draft could, however, give clearer encouragement to employers to consider such restructuring voluntarily and also point to possibly applicable requirements under other laws to undertake job restructuring in this wider sense. (Whether State laws can validly declare failure to undertake such restructuring to be discrimination when the DDA, implementing the ILO convention, states that it is not, may be open to argument, but is not a problem that the Sub-committee has to resolve. Whether or not failure to change inherent requirements can validly be declared discriminatory, governments may at least require such changes regarding their own employment.)

Right to be consulted

One submission argued that section 9.3 of the draft should be amended to provide a right to be consulted.

Secretariat comment:

It is not apparent how a failure to follow a desirable procedure, such as consulting, could in itself be validly made by Standards reflecting the existing effect of the DDA to constitute an unlawful act of discrimination.

Failure to consult will not in itself be less favourable treatment if other employees are not consulted in equivalent circumstances. If other employees are consulted on equivalent matters but people with a disability are not, this would be covered by the material already included on less favourable treatment regarding work related communications.

Failure to consult would not seem in itself to involve imposition of any condition or requirement so as to be capable of constituting indirect discrimination, although it may very well lead to the imposition or maintenance of unreasonable and discriminatory conditions or requirements. The secretariat suggests that the draft already gives strong encouragement to consultation with people with a disability regarding reasonable adjustment.

Preferred form of adjustment

A number of submissions argued that a person's preferred form of adjustment should be provided unless to do so would impose unjustifiable hardship, and raised concerns that less effective or ineffective adjustments may otherwise be too readily substituted.

Secretariat comment:

Some redrafting may be appropriate to avoid any unintended impression that a person's preference should be readily disregarded. However, the secretariat believes the alteration suggested by submissions overstates the present level of employer obligations under the DDA.

If a non-preferred adjustment is effective, it is not clear that it will be an unreasonable condition or requirement for a person to be required to use that adjustment instead of the preferred adjustment, even if providing the preferred adjustment would not have imposed an unjustifiable hardship.

Adjustments principally for non-employment related purposes

One submission argued that if an adjustment is required for work, it should be provided even if its principal use is for non-work purposes.

Secretariat comment:

The provision of the draft Standards excluding such items from the meaning of reasonable adjustment was based on the view that it is always reasonable to expect an employee to provide such items as his or her own hearing aid, wheelchair, guide dog, or medication, which are required principally for daily life, even though they may also be necessary or convenient for work purposes, and that it would be an unjustifiable hardship to require provision of such items by the employer.

On the other hand, if a person requires such items (or modified versions such as specialised eye glasses) only or principally because of work requirements, the draft Standards would include these items within possibly required reasonable adjustments, even though the person also derives benefits in private or daily life from that provision. Some redrafting or examples may be appropriate to make this second point more clearly.

The concern expressed in one submission that the exclusion of adjustments required principally for non-employment related purposes meant that only adjustments to a person's particular work area were required, and not adjustments securing equal access to shared facilities such as tea rooms, is, in the secretariat's view, clearly inaccurate, as should be obvious from reference to sections 6(f) and 9(1)(e) of the draft. Revision of those sections to include examples may assist in avoiding any such misinterpretation of the purpose of this section.

Position of support workers

One submission called for more detailed provision on the position of support workers (including in relation to occupational health and safety liability, and to who is the employer of such a worker).

Secretariat comment:

The existing draft refers to permitting or facilitating use of externally provided support workers as a form of reasonable adjustment, and would hence require this to occur where needed, subject to issues of unjustifiable hardship and other exceptions provided.

It is not clear how a non-prescriptive standard reflecting the existing provisions of the DDA can go further than this to determine issues of the status of such support workers, or problems which may arise under other laws regarding responsibility for actions of these workers.

Limits of reasonable adjustment

One submission requested a clearer presentation of unjustifiable hardship in defining what is and is not reasonable adjustment, rather than hardship being presented only at the end of this material as a limitation.

Secretariat comment:

The definition of what is reasonable adjustment in draft section 9 already states that reasonable adjustments "are adjustments which ... are not excluded by the exceptions set out in section 9.4". The request in this submission could be met without any alteration of meaning by redrafting this to read Ado not impose unjustifiable hardship or are not excluded by other exceptions in section 9.4".

Inherent requirements

Weight of employer views

A number of comments expressed concern that the draft Standards gave excessive deference to employer determination of what a job is and its inherent requirements. Substantial concern in this area arose from the statement in draft section 12.1 that:

the job which an employer requires to be performed is for the employer to determine (within the framework of applicable laws, awards, and collective or individual agreements) rather than for authorities administering anti-discrimination laws. This includes determining the functions to be performed within a job.

Secretariat comment:

Unlike many other areas of concern raised by submissions, which appear to have resulted from draft provisions being given interpretations which they could not (in the secretariat's view) reasonably bear, draft section 12.1 appears to have been open to more sweeping interpretations than was intended, and to require some revision for this reason. The following comments are intended to assist in considering how that revision should be approached.

The points intended to be emphasised were that "the job" in any situation exists as a matter of fact, to be established by evidence, rather than a court or tribunal having authority to decide what the job should be, or should have been, in order to promote objects of the DDA; and that ascertainment of what is "the job" is prior to ascertainment of what are the inherent requirements of that job.

In this respect the DDA (in this area) contrasts with some other anti-discrimination laws, which use concepts such as "the work reasonably required", and which do appear to authorise enquiry not only as to whether particular work was in fact part of a particular job, but whether it was reasonable for this to be so. In this respect at least the impression which appears to be reflected in submissions that the DDA is, and must be interpreted as, more demanding on employers than any State or Territory legislation, is not accurate. While "inherent" is a significantly more demanding standard than "reasonable", "the job" is obviously a less restricted concept than "the job reasonably required".

Some confusion in dealing with draft section 12.1 may have resulted from the dual meaning of the word "determine" as used in the draft, covering both active or constitutive decision making and ascertainment of a state of affairs after the fact. The draft attempted to point out that courts and tribunals acting under the DDA are not authorised to engage in the first kind of "determination" of what a job is, but are authorised and required, in case of complaint, to engage in the second kind of determination regarding what the job is and what are its inherent requirements. Clearer distinction in terms appears required in this respect.

Similarly, reference to an employer "determining" the job to be performed was intended to refer to a constitutive decision which would, at least in general, be made before the job was offered or created. It was not intended to mean that the employer's subsequently asserted view of what the job was, would always be accepted in relation to a complaint so as to exclude any independent ascertainment of what in fact the job was by the court or tribunal concerned.

The reference to an employer determining the job to be performed was criticised in submissions as presented a two sided process as if it were a unilateral decision by the employer. The draft did refer to the job being determined within a framework of applicable laws and agreements. However, it did not reflect that the development of a job may be more complex than simple and one off unilateral offer and complete acceptance. In this respect some revision appears required.

Qantas v Christie

Submissions referred to the decision of the Full Court of the Industrial Relations Court in Qantas Airways v Christie (14 June 1996), which dealt with the provision in the Industrial Relations Act, referring to "the inherent requirements of the particular position", and argued that the draft should be revised to reflect this decision.

Secretariat response

This decision emerged at the same time as the draft was being finalised and was not incorporated because there was not sufficient time to consider its implications properly prior to the scheduled release date for the draft.

Authority of this decision for the DDA

The judgments in Qantas v Christie are not, strictly considered, directly binding for the interpretation of the DDA, but must be regarded as highly relevant.

Although the case concerned slightly different words in another Act, the view of the Industrial Relations Court appears clearly correct that "inherent requirements of a particular position" in the Industrial Relations Act means the same thing as "inherent requirements of the job" in the Discrimination (Employment and Occupation) Convention and therefore in the DDA.

However, apart from any differences resulting from other provisions which the DDA contains but the IRA does not, in the secretariat's view the Federal Court would not be bound as a matter of precedent to follow the points decided in Qantas v Christie in a case under the DDA raising the same issues. The Industrial Relations Court is not hierarchically superior to the Federal Court and a decision of the Full Industrial Relations Court would not appear to bind at least the Full Federal Court.

Although all judges in the Qantas case are also Federal Court judges, considered solely as members of the Federal Court the position is that two members (Justices Gray and Marshall) would have held for Mr Christie and two (Justice Spender and Justice Wilcox, Chief Judge of the Industrial Relations Court) would have held for Qantas. A different distribution of the court as between first instance and appeal would have produced a different result, even considering only the four members of the Federal Court involved. It may be relevant to note that of these four, the two more senior members of the Federal Court (Justices Wilcox and Spender) would have held for Qantas.

These points are included not to diminish the importance of the decision but to indicate that the subcommittee remains free to come to a view of the DDA which differs in some respects if it chooses to do so. Whether the draft as issued or as recommended to be revised is in fact consistent with or different from what was decided in Qantas v Christie depends on more detailed consideration of the judgments.

The two majority judges appear to have reached the same result on the inherent requirements issue for different reasons. Again, this is noted not to diminish the relevance of these reasons as reasons for the sub-committee to consider, but to suggest that it is not a matter simply of bowing to applicable clear authority. If the sub-committee decides that Standards should follow the decision in Qantas v. Christie, this could involve either choosing between one of the two majority approaches, or possibly applying both.

Discriminatory laws and inherent requirements

Justice Marshall said:

Qantas submitted that it was an inherent requirement of the position of a Captain of a B747-400 aircraft employed by Qantas for the occupant of that position to be able to perform the duties attending that position in any part of the world. It contended that the acceptance of Qantas' offer of employment by Mr Christie in 1964 involved him in accepting that condition. As Mr Christie was unable to fulfil that condition on reaching 60 years of age, it was submitted that Qantas was able to terminate his employment without offending the material provisions of the Act.

A logical consequence of the submissions of Qantas is that it would be entitled to terminate the employment of all its female pilots with impunity if one or more foreign countries would not permit them to fly into their airports. Equally, if some particular nation or nations decided that pilots of a certain sexual preference would not be permitted to land aircraft on their soil then all pilots having such sexual preference would be liable to dismissal at the hands of Qantas, without remedy. Clearly such an absurd situation ought not be countenanced, especially in circumstances where the Court is interpreting remedial legislation which is designed to provide protection to employees against discriminatory treatment at the hands of their employers. See Grout v Gunnedah Shire Council (1994) 1 IRCR 143, 160 per Moore J.

This reasoning reflects a refusal to accord employers any better defence in giving effect to the discriminatory preferences of others than they would have in giving effect to such preferences of their own. Similar (but as discussed below, not identical) reasoning has been applied under the Sex Discrimination Act, as well as under United States laws, and was sought to be reflected in section 12.4 of the draft Standards, although as noted below some submissions interpreted this provision in the draft as having directly the opposite effect to that intended.

While courts and tribunals including HREOC have recognised that refusing to take discriminatory preferences of customers or co-workers into account as a defence may cause hardship for employers, they have insisted (as Justice Marshall did in this case) that to do otherwise would seriously undermine anti-discrimination laws. It might be noted that co-workers, customers or others who cause or incite an employer to discriminate could themselves be liable for discrimination under the DDA. Whether or not that potential liability is of any practical help to an employer in resisting discriminatory preferences, it is a reason for the DDA not to accept ability to comply with discriminatory preferences as an inherent requirement.

However, Justice Marshall's reasoning in Qantas v Christie goes beyond this, refusing to give effect not only to discriminatory preferences of customers or other employees, but to discriminatory but mandatory requirements of other laws.

In the case of discriminatory requirements in Australian laws, there would be a further question under the DDA of whether those discriminatory requirements remain valid and in force. Section 47(2) provides for laws to be prescribed and thus for actions in direct compliance with those laws to be made not unlawful under the DDA. Other than this, and noting that as yet no laws have been so prescribed, any State or Territory law inconsistent with the DDA would be inoperative to that extent under section 109 of the Constitution. Commonwealth laws inconsistent with and older than the DDA would be impliedly amended or repealed to the extent of the inconsistency.

Draft section 12(3)(h) includes any mandatory qualifications for the position which apply because of the provisions of another law among factors relevant to the determination of inherent requirements. However, in view of the discussion in the preceding paragraph here, an explanatory note may need to be added to this provision to warn employers that while such provisions will be referred to, they might not be decisive, since it is possible that the other law itself is invalid.

Where discriminatory requirements are contained not in Australian but foreign laws, (or for that matter in later Commonwealth laws or any prescribed law) there is no question of those laws being invalidated for inconsistency with the DDA.

Justice Marshall's argument that it would be inconsistent with the anti-discrimination objects of the Industrial Relations Act to accept discriminatory requirements of foreign laws as inherent requirements has considerable force and would be equally applicable to the objects of the DDA.

However, while his judgment refers to the situation where one or more foreign countries impose the discriminatory requirement, it is not clear why the same reasoning would not also apply to a situation where every relevant foreign country imposed the requirement. On this approach, no adjustment would appear possible which would permit the employee to perform the work for which he or she is employed and yet dismissal would appear to be defined as unlawful under the Industrial Relations Act (as it then existed).

While such a strict construction of the concept of inherent requirements is consistent with the object and purpose of the Discrimination (Employment and Occupation) Convention, and thus with one of the applicable principles of interpretation under article 31 of the Vienna Convention on the Law of Treaties, it might be argued (from the employer perspective) to involve an absurd result, contrary to another of the applicable principles of interpretation under article 32 of the Vienna Convention.

Alternatively, it could be argued that, while imposing hardship on an employer, this result is not absurd, only very strict; and that in such a situation the Discrimination (Employment and Occupation) Convention called for, and the Industrial Relations Act did, what international human rights law and ILO Conventions have generally not been interpreted to require and what Australian law has generally not done: that is, to make it unlawful to trade with countries whose laws are not consistent with anti-discrimination requirements. Such an approach might, for example, apply to exports of food products to countries with laws banning people who are HIV positive from participating in food preparation, at least on the part of an employer whose business does not provide the capacity for the person to do their job servicing markets not subject to this exclusion.

As discussed in the Qantas v Christie case, where reinstatement (or an order not to dismiss, or to employ) is not practicable (as it would not be if the work required cannot, in fact, be done) the applicable remedy would be damages. This would mean that in effect an employer would be compelled (by damages) to pay a price for doing business with a country with discriminatory laws but could continue in this business if prepared to pay this price. To some extent this may modify the strictness of the implications of Justice Marshall's view, although discrimination law purports to prohibit discrimination, and confers rights to financial and other remedies for breaches of this prohibition, rather than setting out to create a Adiscrimination market" wherein one may purchase the right to continue discriminating at an appropriate price.

The secretariat suggests that issues in this area are too many and too complex to resolve with a simple statement that requirements of foreign (or other) laws with a discriminatory effect will never be accepted among the inherent requirements of a job; and also suggests that such a statement cannot with certainty be said to reflect existing law based only on Justice Marshall's decision.

Rather, it may be appropriate to revise draft section 12.4 to point out that, while the requirements of other applicable laws may provide relevant information on the inherent requirements of a job, courts will not always accept discriminatory requirements as inherent, with some examples illustrating the issues discussed here. This may leave employers in an awkward and uncertain position but it is not clear, on the state of case law, how Standards can do better than this if they are to reflect the existing law regarding inherent requirements.

It should also be noted that, unlike the Industrial Relations Act as it applied in Qantas v Christie, inherent requirements is not the only possibly applicable limitation on the concept of discrimination under the DDA, since in many cases (that is, except where the requirement is a direct and unavoidable requirement not to have the disability concerned) the concepts of unjustifiable hardship and / or reasonableness will also be relevant.

Thus, had Qantas v Christie been a case under the DDA, the decision that being able to fly anywhere in the world (as Mr Christie could not because of foreign laws) was not an inherent requirement of the job would not have been the end of the matter, since consideration would also have been open of whether the changes in rostering which were required to enable him to perform the inherent requirements of the job, as they were found to be, would impose an unjustifiable hardship on other employees or on the employer.

A strict view of inherent requirements may therefore be more sustainable from an employer perspective under the DDA than under the Industrial Relations Act as it stood at the time Qantas v Christie was decided.

Employer requirements and inherent requirements

In his judgment in Qantas v Christie, Justice Gray said:

In my view, both the contractual requirement to fly anywhere in the world as required and the bidding and roster system are irrelevant to the inherent requirements of the appellant's particular position, for the purposes of s. 170DF(2). That subsection refers to an "inherent" requirement, namely something that is essential to the position, rather than being imposed on it. I do not think that an employer, by stipulating for contractual terms, or by creating or adhering to rostering systems, can create inherent requirements of a particular position. An employer could not, by a term of the contract, give itself the right to dismiss a woman who became pregnant, a person who suffered some physical or mental disability, someone who changed marital status or acquired family responsibilities, or someone who adopted a particular religion or political opinion, in defiance of s. 170DF(1)(f).

...

The policy underlying the section is one that, wherever possible, protects employees from discrimination in termination of their employment for any of the prohibited reasons. That policy would be undone completely if an employer could arrange the terms of the contract, or its operating systems, so as to permit it to terminate the employment of employees on those prohibited grounds.

These comments appear clearly correct and applicable to the DDA so far as the term "inherent requirements" is concerned. A similar view, as noted by the Industrial Relations Court, was expressed by HREOC in X v Department of Defence. The draft may need to reflect this more clearly than it did, while also making clear that requirements additional to the inherent requirements of the job may also be defended so long as they do not involve direct discrimination and are reasonable.

However, Justice Gray's comments quoted do not address the prior issue of what is "the job", from which the inherent requirements are necessarily deduced. (This issue is addressed elsewhere in his Honour's judgment as discussed below.)

While the terms of a written contract of employment are not necessarily decisive of what the job is (as the draft sought to indicate), they cannot, consistent with the law of employment or of contract, be regarded as necessarily irrelevant either.

An artificial stipulation of a requirement so as to exclude a person with a disability is easily excluded from the definition of "the job": this was part of the point of the reference to "the work required in practice" in the draft. But it cannot be the case, if the law of contract has any remaining application in the employment area and if courts or tribunals administering anti-discrimination laws are not to substitute themselves for the parties to the employment relationship in defining what the job is, that a requirement is disqualified from forming part of "the job" simply because it emanates from the employer or is found in a contract of employment.

Justice Gray regarded Chief Justice Wilcox as having found at first instance that the job concerned was that of flying 747-400B jets internationally, and, applying this view, regarded a requirement to be able to fly anywhere in the world as an additional, employer imposed requirement which was not part of "the particular position" and thus was not an inherent requirement.

Justice Gray noted that "the distinction between an inherent requirement and one imposed by a term of the contract of employment, or by the adoption of some system by the employer, is not always clear".

He went on to say that "Characterisation of the particular position of an employee will often involve matters of impression. In the process, a purposive construction of s. 170DF of the Act must be adopted".

With respect, however, a purposive construction of an Act, so as to best serve its objects, does not mean and cannot permissibly be taken to mean the same thing as construing each employment relationship, contract of employment or other factual circumstance according to that same purpose, so as to best serve the objects of the Act under which proceedings are brought. The distinction needs to be recognised between interpretation of statutes (where an approach based on the purpose of the Act is legitimate and indeed required) and findings of fact (where a construction to suit the purposes of a statute rather than based only on the weight of evidence would involve a major error of law).

The particular position

Justice Spender disagreed with Justice Gray's view of Chief Justice Wilcox's findings, regarding "the job" as having been found to be "a 747-400B Qantas international captain", thus importing the particular circumstances of Qantas operations (including flying to countries to the majority of which a captain aged over 60 could not fly) into the definition of the job rather than being an extraneous imposition by the employer.

Justice Marshall made the following comments on how "the job" should be characterised:

In this case the Court has been referred to the preparatory work of the Convention by way of an article by Henrik Karl Nielsen in (1994) 43 ICLQ 827 entitled "The Concept of Discrimination in ILO Convention No. 111". At 845-846 the learned author said as follows:

"...Regarding the meaning of the term 'particular job', it appears from the preparatory work of the Convention that the term refers to a specific and definable job, function or task and not to a broader sector of employment. Thus, the Conference Committee on Discrimination rejected a proposal from the employers to insert after the words 'inherent requirements of the job' the words 'or the particular circumstances under which the job is being performed'."

See also para 126 of the International Labour Office General Survey of 1988 regarding the concept of a particular job where it is said that:-

"Concept of 'a particular job' - 'It appears from the preparatory work and the text of the Convention as ultimately adopted, that the concept of "a particular job" refers to a specific and definable job, function or task. Any limitation within the context of this exception must be required by the characteristics of the particular job, and be in proportion to its inherent requirements. Certain criteria may be brought to bear as inherent requirements of a particular job, but they may not be applied to all jobs in a given occupation or sector of activity, and especially in the public service, without coming into conflict with the principle of equality of opportunity and treatment in occupation and employment."

These comments, in the secretariat's view, in fact support a characterisation of "the job" which takes an employer's operational circumstances into account, rather than one which treats these as irrelevant.

The guidance from the International Labour Office does not in fact indicate that specific operational circumstances should be disregarded, as might be concluded from the academic article quoted.

The fact that the drafters of the Discrimination (Employment and Occupation) Convention omitted express reference to "the particular circumstances under which the job is being performed" is equally consistent with the view that those circumstances are already included for appropriate consideration within the concept of inherent requirements, and that the further phrase was not necessary and might confuse matters (for example by being taken to suggest that co-worker prejudices could legitimately be taken into account), rather than demonstrating that these circumstances were intended to be excluded.

The emphasis of the International Labour Office statement is that jobs, and thus their inherent requirements, should be examined in their specific detail rather than only described on the basis of what happens across a whole industry or occupation. The fact that a requirement may be inherent to some jobs within an occupation or sector is not to be taken to mean that it is an inherent requirement of all jobs in that occupation or sector.

The International Labour Office clearly expected this emphasis on specifics to be generally to the advantage of equality of opportunity. By ensuring that requirements are only applied to those jobs within an occupation where they are genuinely required, people with a disability who cannot meet those requirements will be excluded only from those jobs which they genuinely cannot do.

As noted by the International Labour Office, application of standard entry requirements across a whole sector or occupation has been a particular problem in the public sector, where, perhaps for reasons of administrative convenience, people who may in fact be seeking to be employed only for a specific job in a specific setting which they can do, are required to satisfy the requirements of related jobs in a range of settings, which they may not be able to do.

In X v Department of Defence one of the issues was whether an ability to be deployed to any duty was an inherent requirement of the job of soldier. Whether or not HREOC was correct in its decision on that issue, clearly it was an appropriate and necessary issue to examine. Whether the job of an Australian Army soldier is in fact to serve in any duty required, and whether the job of a Qantas international captain is in fact to fly anywhere in the world that Qantas flies to, are indeed questions of fact, to be determined, like all other questions of fact, on all available relevant evidence.

If the specific operational details of a particular job with a particular employer can be and must be referred to where this demonstrates that a person with a disability can do the job (although not being able to do all jobs in that occupation or sector), they must also be relevant and permissible to refer to where this demonstrates that a person with a disability cannot do a particular job (although able to do similar jobs in other settings). A purposive construction of the DDA can hardly mean changing the meaning of the Act or the approach to facts from case to case in the manner most favourable to complainants.

Qantas v Christie is not authority for an approach which disregards specific operational circumstances. Such an approach in Qantas v Christie would have defined the job simply in terms of the technical ability to fly a 747-400B without any reference to being permitted to fly to at least some of the countries required by a particular airline. No majority for such an approach can be found in the judgments. A focus on specifics of the job led Justice Gray to conclude that a Qantas pilot did not in fact need to fly anywhere in the world, since on his view of operational circumstances it was possible to perform the job required while being able to fly only to a restricted range of countries. Justice Spender's view of the specific operational circumstances led him to the opposite conclusion (as with Chief Wilcox at first instance).

Outcomes or methods

Submissions called for increased emphasis on adjustment in the method by which a result can be achieved, while (in most cases) accepting that employers could determine outcomes required.

Secretariat comment

This distinction could be emphasised in revised drafting. However, it is subject to the constraint previously expressed that the DDA does not give anti-discrimination authorities rights to redesign jobs solely in order that a person with a disability may be able to do them. Issues in this area are discussed further below under the heading Emergency Duties.

Market and customer service requirements

Some submissions expressed concern that the reference to market and customer service requirements might allow discrimination. One submission made suggestions for redrafting to avoid this concern, as follows: "Discriminatory prejudices, assumptions and preferences of customers, clients, other employees, or other persons can never be relevant in determining the inherent requirements of a job".

Secretariat comment

As indicated prior to the release of the draft, and as discussed above in these notes, the words "but not so as to authorise or excuse otherwise unlawful actions in giving effect to discriminatory preferences of customers, other employees or other persons" in draft section 12.4 were intended and expected to have the same effect as the proposed redraft just referred to. It may be that locating this statement to a sentence of its own would make it more likely to be given due emphasis (or read) than would appear from submissions to have been the case with the existing draft.

Emergency duties

Submissions indicated that the reference in the draft Standards to duties requiring performance in an emergency should be qualified by also referring to whether there is a real or an essential requirement for the particular employee to be able to perform the duties concerned.

Secretariat comment

This issue relates to job restructuring generally rather than to emergency or occasional duties only.

Some revision to the draft in this area may be required to avoid the impression that remote possibilities, or artificially constructed requirements devised to exclude a person with a disability, will be accepted as part of inherent requirements. This could include revising draft section 12.3(b) to refer to "any real need" rather than "any need".

However, including reference to whether there is "an essential requirement for the particular employee to be able to perform the duties concerned" raises further issues and in the secretariat's view goes beyond the existing requirements of the DDA.

In determining what "the job" is and what are the inherent requirements of that job, the question must be, not "is it essential that a particular function be part of a particular person's job", but "is the function in fact part of that person's job, such that ability to perform the function is an inherent requirement of the job". This follows from the fact that under the DDA required reasonable adjustment cannot include changing the inherent requirements of a job, whether or not it would involve any unjustifiable hardship to do so.

On this analysis, availability of other employees to perform a function, and how readily it could be performed other than by the person with a disability, may be relevant evidence in establishing whether "the job" in fact includes the duties concerned or not. But the fact that it is not essential that the job includes those duties does not make HREOC or the courts free to redesign the job to reallocate those duties, or require the employer to do so, if those duties are in fact part of the job.

While HREOC in its Employment Manual did encourage consideration of reallocation of duties (taking into account that some State legislation has been interpreted as requiring this), it has also consistently rejected the equation of "inherent requirements" under the DDA with "essential functions".

An employer who maintains duties which limit equal opportunity as part of a job, where those duties could be performed by other employees without unjustifiable hardship, may be said to be taking a risk that his or her view of what the job is will be accepted (as well as the risk of complaints under other legislation which might be more demanding in this respect than the DDA). It might be prudent behaviour for an employer to restructure jobs to reallocate non-essential duties where these present barriers to equal opportunity (as well as perhaps enabling the employer to benefit more from the skills and abilities of employees than under less flexible approaches). That is not the same, however, as a positive requirement under the DDA to reallocate non-essential duties or functions.

Work required in practice

One submission expressed concern that reference to "the work required in practice" as a factor to consider in determining inherent requirements in effect defined existing requirements as inherent requirements.

Secretariat comment

This was not the intended effect of this reference.

Rather, the intention was to indicate that if a requirement (although appearing on a duty statement or otherwise insisted on by an employer) was not in fact performed in practice, this would exclude it being an inherent requirement, except where the requirement could be shown to be one required to be performed some of the time, in emergencies or periods of peak work load.

Similarly, a requirement could be established as genuine and inherent despite not appearing on any written duty statement. The DDA neither requires the existence nor the acceptance as authoritative of comprehensive written statements of duties or selection criteria, whether or not it may be good practice to develop and keep up to date such statements in those business environments where this is a realistic possibility.

Revised drafting including further explanation or examples may remove misunderstandings on this point.

Flexibility in job design

One submission indicated that any Standards should compel employers to design jobs more flexibly to accommodate people with a disability rather than taking jobs as given.

Secretariat comment

As discussed under the heading Emergency Duties, the secretariat regards the draft Standards as going as far as is consistent with the present requirements of the DDA in requiring adjustments. The DDA does not require employers to create or maintain jobs which a person can do, rather than make adjustments to enable a person to do the job there is.

Specification in advance

Some submissions indicated that Standards should do more to require employers to specify inherent requirements in advance and adopt methods of job analysis for this purpose.

Secretariat comment

The secretariat does not consider that such procedural provisions, even if desirable and practicable, could be validly included within Standards under the DDA as presently drafted. However, it may be possible to include reference to the possible relevance of techniques of job analysis in identifying what the job is.

Unjustifiable hardship

Need for examples

Some submissions indicated that the material on unjustifiable hardship, while a good start, needed expansion and clarification including by provision of examples.

Secretariat comment

The secretariat considers that inclusion of examples in this section could remove many of the concerns outlined below, many of which appear based on major misunderstandings of the purpose and legal effect of the draft in this area.

Expansion of existing defences

Most submissions made by or on behalf of the disability community and by advocates for people with a disability saw this material as too extensive and as expanding defences available. Many of these submissions argued that nothing should be stated on unjustifiable hardship beyond the words of the existing section 11.

Secretariat comment

Consistent with the consensus of the sub-committee that Standards should reflect existing rights, obligations and defences, the intention of the draft section on unjustifiable hardship was intended to "expand on", that is, explain in more detail, but not "expand" the concept of unjustifiable hardship . Members may recall that responses to the earlier papers issued by the sub-committee identified unjustifiable hardship as an issue particularly in need of clarification.

The secretariat does not believe that the legal effect of the draft, on a fair or sustainable reading, would in fact be to provide more extensive defences to employers than the DDA provides at present.

The fact that the draft section is much longer than DDA section 11 does not, as should be (but may not have been) obvious, mean in itself that it contains extra defences. To the extent that any matters referred to are relevant, they already have to be referred to under DDA section 11. To the extent that they are not relevant in a particular case the draft Standards do not require or permit their consideration.

As a practical matter, it could more plausibly be argued that by indicating in more detail the issues which a claim of unjustifiable hardship may have to address, the draft has set up a longer series of hurdles for employers to jump: although the secretariat believes that the draft in fact only marks more clearly the hurdles which are already in place in DDA section 11.

Given, however, that it must be regarded as at least possible that some employers might interpret this material as expansively as many disability community submissions have, clearly there is a problem at least of perception or presentation which needs to be addressed. The more detailed discussion which follows is not intended to deny this problem but to clarify its dimensions.

Equal weighting for each factor in DDA section 11

One submission argued that the existing section 11 of the DDA set out four factors which were each required to be given equal weight and that the draft Standards had invalidly departed from this.

Secretariat comment

There is no basis in the DDA or in administrative or general law for this mechanical construction of section 11 of the DDA. Section 11 states that all relevant factors are to be considered and then provides what in any event is an inclusive, not exclusive list. The weight to be given to different factors must depend on the circumstances rather than on any imported requirement of equal weighting. Otherwise, for example, trivial costs and an Action Plan containing no relevant or effective provisions would have to weigh equally with major benefits to people with a disability and others.

Emphasis on costs

Many submissions argued that the draft emphasised costs of adjustment at the expense of benefits and of the contribution and abilities of people with a disability.

Secretariat comments

In determining whether an adjustment otherwise required by these Standards would involve unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account. This includes costs and other disadvantages or difficulties of making the adjustment, but also includes consideration of benefits which may result. In addition to the benefits of the adjustment to the employee or potential employee concerned and to the employer in achieving the purposes of reasonable adjustment as set out in section 9.1, relevant benefits may result for third parties such as other employees or customers.

There is no predominance accorded to costs here, even if it may have been better to state that "this includes consideration of any costs or disadvantage..." to avoid the possibility of the provision being misconstrued as presupposing that there will be some cost and to reflect those situations where adjustments may not even have any direct cost.

Draft section 13.2.1, the principal discussion of costs, is headed AAre there any net financial costs to the employer to even need justifying?" A major purpose and, it was expected, the effect of this material was to make clear beyond misinterpretation that existence of up front or direct costs of adjustments should not be accepted as sufficient alone to establish the existence of hardship, or that this hardship is unjustifiable.

Of the paragraphs in section 13.2.1 which follow 13.2.1(a), referring to direct costs of adjustment, every one of those which follow refers to an element which is either wholly to be offset against costs, or contains a requirement to balance possible costs and benefits, or directs attention to net costs of adjustment rather than permitting reliance on (often larger and by definition no smaller) gross costs.

Thus:

13.2.1(b) referred to "any offsetting tax, subsidy or other financial benefits available";

13.2.1(c) referred to indirect "costs" but also "benefits" of adjustment, including in relation to productivity;

13.2.1(d) referred to "increase" as well as "decrease" in sales, revenue or effectiveness of customer service;

13.2.1(e) directs attention to the additional cost of an adjustment over that which would be incurred anyway for equipment or facilities provided for an employee without the disability, rather than to the whole cost of the "adjusted" equipment etc.;

13.2.1(f) similarly discounts claims based on gross cost by asking how far an adjustment was required in any case by other laws, standards or agreements; and

13.2.1(g) referred to relevant skills, abilities, training and experience of the person with a disability.

This may fairly be described as providing for detailed consideration of cost factors, but in the sense of requiring cost-based claims of hardship to be evidenced and scrutinised in detail, rather than as providing a series of defences which have simply to be asserted.

One submission (from a major disability community organisation) stated that "any suggestion that adjustments can be burdensome opposes the principles of the DDA". The draft Standards were designed to ensure that perceptions of burdens or costs in making adjustments (which may indeed be less substantial than an employer fears) are tested against evidence and weighed against benefits (which in many cases may indeed be more substantial than an employer expects). They are not, and cannot be, designed as a simple denial that any adjustment ever involves any hardship at all. While attention is needed, in revising this material, to means of encouraging adjustments and avoiding negative impressions, anyone seeking more sweeping statements that no adjustment ever involves any burden needs to become familiar with the actual terms of the DDA, which does, in fact, contemplate that some adjustments will involve hardship, and that some of this hardship will be unjustifiable to impose.

Some of the paragraphs of section 13.2.1 were subject to more detailed criticisms which are outlined and discussed below.

Increase or decrease in revenue or effectiveness of customer service

One submission recommended that paragraph 13.2.1(d), directing attention to possible increase or decrease in sales, revenue, or effectiveness of customer service, should be deleted as already covered by 13.2.1.(c). A number of submissions indicated that reference to possible decreases in revenue or effectiveness of customer service were "offensive" and reinforcing of negative attitudes or stereotypes.

Secretariat comment

Comments referring to paragraph 13.2.1(d) as Aoffensive" may have misinterpreted it as referring to decreases (overlooking for the present the reference also to "increases") in sales or effectiveness because of a person with a disability being employed (which is not what it says or means), rather than because of a particular adjustment (to which alternatives may still be required).

This paragraph does not simply refer to possible negative results. The reference is to "increase or decrease", with (in this case) the reference to "increase" placed first.

Submissions from or on behalf of the disability community uniformly call for attention to be directed to positive consequences of making adjustments to include people with a disability (as also do the terms of DDA section 11 and decisions under the DDA and other laws dealing with these issues). This draft provision does that. However, it is not possible, consistently with the terms of the DDA, to require possible benefits to be taken into account but possible detriment to be ignored, rather than the two being weighed against each other.

It is correct as a matter of law that paragraph 13.2.1(d) does no more than state a particular application of 13.2.1(c). That, however, cannot be accepted as demonstrating that 13.2.1(d) is unnecessary, unless it is also accepted that Standards which do not change but only apply in more detail the requirements of the DDA are not necessary.

The effect of paragraph 13.2.1(d) was intended to be to ensure that attention is directed (by employers and by courts and other administering authorities) to factors similar to those which Sir Ronald Wilson noted that Telstra had failed to address in its argument or evidence in the Scott v. Telstra Corporation case - factors of increased revenue resulting from calls by and to TTY users. If, as generally asserted by disability community advocates and anti-discrimination agencies (including HREOC) there are often significant positive indirect economic benefits from anti-discrimination measures, then to play down the issue of indirect effects of adjustments would not appear to be consistent with promoting equal opportunity in terms of the objects of the DDA. If, in a particular case, indirect costs nonetheless do outweigh benefits, the existing provisions of the DDA already require this to be acknowledged.

Capacity to meet costs

A number of submissions expressed concern regarding the material in draft section 13.2.2 regarding capacity of an employer to meet costs of an adjustment. Concerns included that profitability figures could be manipulated and that an unprofitable firm might be able to avoid responsibility for making adjustments.

Secretariat comment:

While measurement of profit may be complex and controversial, DDA section 11 does refer to "the financial position of an employer". Draft section 13.2.2 might be less controversial and still meet its intended legal function with the deletion of all paragraphs other than (d), which refers to "finances reasonably available at the relevant time, or in the relevant period, for the purpose of making the adjustment, and the relationship of net costs of the adjustment concerned to these finances". It is suggested, however, that applying the concept of finances reasonably available would in any event lead back to consideration of questions such as profit.

The concern that an unprofitable employer may for that reason have lesser obligations than a profitable employer appears real, but difficult to avoid, given that DDA section 11 requires reference to an employer's financial position in determining unjustifiable hardship issues rather than taking a strict "level playing field" approach on which the same obligations apply to all even if that prices some employers out of business.

The presence of the unjustifiable hardship defence does mean in itself that the DDA (like other discrimination laws) treats adjustments to achieve equality as a less absolute requirement than, for example, the strict liability of employers under occupational health and safety laws to provide a safe system of work, or the obligation to comply with food hygiene standards whether one is a department store or a corner shop.

Although submissions received to date have not raised the issue in these terms, different treatment of different employers because of different financial resources could also be argued to present problems of consistency with competition policy adopted by all Australian governments and reflected in the Trade Practices Act as amended by the Competition Policy Reform Act.

This might be addressed in part by including, in the factors to consider in determining if a hardship would be unjustifiable, whether excusing an employer on hardship grounds would confer an unfair competitive advantage in the relevant market. (Particularly in view of the response to the draft, such a provision would need to be drafted with care to avoid any appearance of presupposing that not making adjustments to achieve equal opportunity would in fact necessarily confer an advantage as against employers who do make such adjustments. This might not in fact be the case depending on the level of benefits arising from making an adjustment as compared to costs.)

Government assistance

One submission argued that rather than only referring to availability of government assistance, Standards should specify government responsibilities to fund adjustments.

Secretariat comment:

There is no power in the DDA to compel government to fund particular adjustments, at least where the government concerned is not the employer.

Restriction to direct effects

One submission suggested that paragraphs 13.2.3(c) and (d), referring to issues of adjustments imposing unreasonable requirements on other employees, or leading to health and safety benefits or detriment, should refer only to other employees directly affected.

Secretariat comment:

It is not clear how it could be defended as fair to require that indirect benefits from adjustments be considered but indirect disadvantages be disregarded, as appears to be the position requested by a number of submissions. In any event, if and to the extent that indirect effects (either beneficial or disadvantageous) are relevant and sufficiently demonstrated by evidence, DDA section 11 would require them to be considered, and for that reason the draft Standards do also.

Any other benefit or detriment

One submission argued that the reference to "any other benefit or detriment" could be deleted as the preceding paragraphs appeared comprehensive.

Secretariat comment:

This would involve no substantive change as long as it remains clear that the list is inclusive only.

It might be expected, however, that if the suggested deletion is made, the provision will be interpreted in future (either in further comments or in practice) as not including some relevant form of benefit or detriment.

As already noted, the secretariat can see no basis in law or logic for the apparent view reflected in some submissions that the shorter the list provided of factors relevant to unjustifiable hardship, the more favourable to people with a disability the Standards will be, since the list is of factors to consider, which may weigh against or in favour of a hardship claim according to circumstances, rather than being in any sense a Alist of defences".

Effect of the disability

One submission indicated concern that the draft Standards did not expressly include reference to "the effect of the disability of a person concerned" as DDA section 11 does, and claimed that this omission reduced protection for people with a disability.

Secretariat comment

Previous comments to HREOC have expressed concern that this phrase in DDA section 11 could be misinterpreted to authorise discrimination, for example by reference to prejudiced reactions to a person's disability as part of "the effect of the disability". Comments have also been made, notwithstanding the attempted explanation of this phrase in HREOC's Employment Manual issued in 1994, that the purpose and effect of this phrase remains obscure.

For these reasons the draft Standards did not directly reproduce this phrase but sought to reflect its implications appropriately in other terms.

In an employment context, relevant effects (if any) of a person's disability relate to the person's ability to perform inherent requirements of the job or to comply with other lawful requirements; and the need for, nature of, and benefits to be derived from adjustments required to enable performance of or compliance with these requirements or to ensure equal opportunity or equal enjoyment of terms and conditions. These issues are addressed expressly in the draft Standards, in particular in draft section 9, as well as at the beginning of draft section 13.2.3.

Failing any clearer argument for including the term "effect of the disability", by reference to issues covered by this term but not addressed by the Standards, the secretariat recommends against its use in Standards.

Reference to action plans

One submission indicated that it was "inconceivable" why reference to action plans was included, and that this was "arguably ultra vires", that is, beyond power under the DDA.

Secretariat comment

The secretariat regards this comment as misconceived.

While, as noted, it is the case that service providers are invited to prepare action plans, rather than employers as such, a service provider may be (and often is) also an employer. It is not the case that an action plan, though principally concerned with non-discriminatory service provision can never contain provisions relevant to employment.

Most obviously, modifications to make work premises accessible for customers may also benefit employees. Equally, a service provider might well include in an action plan some provisions more directly concerned with equality of opportunity, on the basis of a decision that achieving non-discriminatory service provision requires more effective use of the knowledge and experience of employees or potential employees with a with a disability.

If an action plan does contain provisions relevant to employment, these must be considered under the existing provisions of the DDA, and for that reason the draft Standards properly contain the provision referred to.

Harassment

Harassment by co-workers

Several submissions expressed concern that the draft in this area did not apply sufficiently clearly to harassment by employees.

Secretariat comment

As indicated by draft section 3.1, section 11 on harassment was intended to apply to actions by employees as well as by employers. The draft of section 11 as issued did not reflect this and does appear to require amendment to operate as intended.

Extension of existing obligations

One submission (from a Territory Attorney-General's Department) asserted that the Standards extended the meaning of harassment beyond its meaning in the DDA.

Secretariat comment:

It is not apparent on what basis this assertion was made and the Secretariat does not agree.

Actions "reasonably intended" for legitimate purposes

Some comments expressed strongly worded concern regarding the exclusion from the concept of harassment of actions which cause hurt or humiliation but are "reasonably intended" for legitimate purposes.

Secretariat comment:

The effort, in the notes issued by the sub-committee to accompany the draft Standards, to explain the purpose and effect of this section of the draft, appears not to have succeeded.

The notes attempted to set out the basis of this section of the draft in existing case law on sexual harassment, with necessary adjustments being made for the fact that, unlike sexually related conduct, unwelcome disability related conduct cannot be treated as inherently unlawful.

The supposed "exclusion"does not apply to actions actually intended to cause hurt, humiliation or offence: that is, an action intended to cause humiliation in relation to a person's disability is not rendered lawful because it is also intended for a permitted purpose. But an action not intended to cause hurt etc in relation to a person's disability cannot be regarded as harassment (either under the DDA or in terms of the meaning which the word will bear more generally) by reason only that hurt can reasonably be expected to result, from actions intended, for example, to establish whether a person can perform the inherent requirements of a job, or what adjustments are required to facilitate this.

The limits of the concept of harassment as set out would protect a reasonable effort to counsel a person for poor performance (or, for that matter, reward them for good performance), for example, which incidentally and unintentionally caused hurt or offence. They would not protect an intentional infliction of humiliation even in the course of an otherwise permissible action such as dismissal for inability to perform inherent job requirements.

No change to the substance of the draft in this respect is regarded as justified.

Discriminatory questions

A number of submissions called for considerable prescription in this area with particular questions being specified as prohibited altogether or permitted only at a particular stage. Some submissions identified the failure of the draft Standards to do this as a major reason for not supporting the authorisation of Standards based on the draft. Other questions sought provision of details of prohibited and permitted approaches to health examinations.

Secretariat comment:

It is not clear how a high degree of prescription in this area is possible consistent with the purpose of clarifying rather than varying the DDA and with the generally preferred nonprescriptive overall approach. Also, as indicated below regarding questions for the purpose of identifying reasonable adjustments, some submissions sought prohibition of questions which are not only permitted by the DDA but which appear to promote its objects.

Clearly, however, there is considerable demand for greater clarity than provided by the draft regarding issues in this area. These concerns include:

  • the potential of inappropriate questioning or examinations to cause humiliation and to distract both employer and potential employee from the real business of establishing whether and how a person can do the job and whether they are the best person for the job; and
  • the potential for disability related information (particularly in application forms) to be used as the basis for discriminatory decisions, without sufficient interaction between the employer and the person with a disability either to deal with the employer's concerns about the disability, or (at worst) to provide sufficiently clear evidence of the real basis of a discriminatory decision to give clear grounds for remedy through a complaint.

As suggested in some submissions, examples rather than prescriptive prohibitions may assist in this area. Increased attention (by way of examples to be added within draft section 6) to some types of questions and examinations as constituting direct or indirect discrimination in themselves may also assist in addressing concerns in this area.

Reasonable adjustment questions

Some submissions argued that Standards should provide that discussion of reasonable adjustment must occur only at a late stage of selection, such as only at short-listing or after a conditional job offer.

Secretariat comment

This view is not consistent with the terms, and may also be contrary to the objects, of the DDA.

Section 45 of the DDA provides that actions reasonably intended for the purpose of providing equal opportunity are not unlawful. This clearly includes actions reasonably intended to identify adjustments which a person's disability and the DDA require, and make them as soon as possible if required.

HREOC has not accepted the view previously that restrictions on ability to discuss need for and methods of reasonable adjustment would promote equality of opportunity for people with a disability.

It is widely accepted (including in submissions) that lack of information and awareness often may be a substantial barrier to making required reasonable adjustment, and that this barrier may be more significant in many cases than factors of actual cost or technical difficulty. (Such a view for example is supported by figures maintained by the U.S. Job Accommodation Network on the average cost of recommended adjustments.) It is further strongly asserted by representatives of people with a disability (including in submissions) that an individual with a disability is likely to be a principal source of information and ideas on their own requirements for work related adjustments and on effective methods of making these adjustments.

It appears to follow that legal measures which encourage employers to undertake such discussion will be likely to promote equality of opportunity while measures which discourage such discussion will be likely to act against equality of opportunity.

This does not mean that any and all disability related inquiries must be accepted as permitted or desirable. As indicated under the previous heading, provision of examples may be an effective means of clarifying what is and is not permitted.

Exceptions

Modified wages based on productive capacity

DIR notes that the modified wage exception needs amendment in view of the amendment of DDA section 47(1) by the Industrial Relations Act. They propose the following text.

These standards do not render unlawful anything done by a person in direct compliance with:

(i)an order or award of a court or tribunal having power to fix minimum wages;

(ii)a certified agreement (within the meaning of the Workplace Relations Act 1996);

(iii) an Australian Workplace Agreement (within the meaning of the Workplace Relations Act 1996);

to the extent that the order, award or agreement has specific provisions relating to the payment of rates of salary or wages to persons, where:

(iv) if the persons were not in receipt of the salary or wages, they would be eligible for a disability support pension; and

(v) the salary or wages are determined by reference to the capacity of that person.

Secretariat comment

This should be accepted subject to the reference being to Aproductive capacity" as suggested by the ACTU and, if possible, including reference to that capacity being reasonably assessed.

DIR further proposed text as follows:

A model Supported Wage clause, which provides for the determination of salary or wages by reference to the capacity of a person who would otherwise be eligible for the disability support pension, was established by the Australian Industrial Relations Commission in the Full Bench decision dated 10 October 1994 (print L5723). The Supported Wage System provides for, inter alia, the payment of a pro-rata award wage based on a nationally consistent system for the assessment of a person's productive capacity; and that income earned may be supplemented by a means tested Disability Wage Supplement through the social security system.

The secretariat recommends that this be included as an explanatory note rather than as part of the operative text.

Insurance and superannuation

One submission, referring to evidence that many difficulties in achieving equal opportunity in, or even access to, employment relate to difficulties in achieving superannuation coverage or to concerns that a person's disability will lead to increased workers compensation costs, expressed concern that in the draft as issued "the onus of proof implicitly rests with the person with a disability to prove that they are not the source of increased liability". This submission called for this onus to be reversed.

Secretariat comment:

Draft section 14.1(f) followed DDA section 46 in providing an exception for Adistinctions, exclusions or limitations in relation to insurance or superannuation which are reasonable on the basis of actuarial evidence reasonably available and any other relevant evidence". This does not, in fact, impose any burden of proof on a person with a disability. Proof of the applicability of an exception generally rests on the party asserting it. In particular, this draft section was framed on the basis that proof of the reasonableness of distinctions etc under this paragraph would be the responsibility of the employer or insurer. The sub-committee has previously formed the view that onus of proof should be left where it currently stands rather than the Standards seeking to make any specific or different provision in this respect. An explanatory note on proof of exceptions might however be appropriate to avoid confusion.

Health and safety

A number of submissions expressed concern regarding the exception in draft section 14.1(h), for Ameasures which are reasonably necessary in the circumstances to protect the health or safety of any person". Some submissions argued that this exception reinforced, accepted or at least failed sufficiently clearly to challenge discriminatory assumptions based on inaccurate or stereotyped views. One submission argued that this exception limited the protection provided by the DDA, which only excepted measures to protect public health regarding infectious diseases. In contrast, one submission called for clearer specification of measures that employers would be justified in taking regarding particular types or degrees of disability.

Secretariat comment:

The exception as drafted does not assume, or permit action on the basis of assumptions, that all people with a disability present, or any particular person with a disability presents, health or safety problems, or that, on average, people with a disability have significantly higher rates of involvement in injury or accident, or any other such assumptions. But rejection of stereotypical assumptions does not require or permit acceptance of an assertion that a person's disability will never present an unacceptable safety or health risk in particular circumstances. Such a statement might be satisfying to make but obviously lacks credibility.

If the law is to require rejection of ill-founded fears, it must provide some recognition of well-founded fears where these can be established. The draft requires that measures to protect health and safety must be reasonably necessary in the circumstances. The factual circumstances, the necessity arising therefrom, and the reasonable relationship of the measures to that necessity, would all be the responsibility of an employer or other person relying on this exception to establish. An explanatory note could point this out if that would make matters clearer.

It is correct that the specific public health exception in the DDA refers only to infectious diseases. This was not, however, because of a decision that public health or safety only needs protection regarding infectious diseases, or because of acceptance of a discriminatory view that people whose disability involves an infectious disease have fewer rights than other people with a disability. The secretariat view is that the infectious diseases exception serves only to confirm what is in any case the effect of the DDA, in particular in the employment area.

This view is based primarily on the point, as argued prior to the release of the draft, that the inherent requirements of a job are not restricted to the ability to perform tasks required, but also include the performance of those tasks without imposing unreasonable health or safety risks on others, or even on oneself. This approach that inherent requirements are not confined to task performance is supported by the decision of HREOC in Y v Australia Post, where the ability to work effectively with other people was found to be an inherent requirement.

The inherent requirements limitation of course applies whether the restriction relates directly or only indirectly to disability. In relation to indirect discrimination, there is the further consideration that a condition or requirement which is reasonably necessary for what are clearly at least legitimate (or in fact compelling) purposes, will by definition be Areasonable".

Draft section 14.2 notes that the issue of whether a measure is reasonably necessary, including for health and safety purposes, is to be examined subject to the requirement to make reasonable adjustments, so that if a modified and non-excluding requirement would be equally effective in eliminating unreasonable risk, excluding a person with a disability will not be justified by this exception. Stating this result more clearly by way of examples might address some concerns in this area.

Combat duties

Some submissions criticised the inclusion of the exception for combat duties.

Secretariat comment

HREOC's policy view of the substantive merit or otherwise of this exception in the DDA is well known, but its omission from Standards would require a change to the consensus view maintained so far that the Standards should neither expand nor reduce present rights and obligations under the DDA.

Domestic duties

Some submissions also criticised the inclusion of this exception.

Secretariat comment

As with combat duties, the domestic duties exception in the draft reflects that in the DDA and its removal would mean that Standards applied more broadly than the existing provisions.

Charities

One submission requested that the charities exception be included.

Secretariat comment

The secretariat recommends against accepting this suggestion.

As noted by another submission, the charities exemption is not a general exemption for charitable organisations and in particular does not give charities general permission to discriminate as employers. It simply confirms what would have been the case under the DDA without such an exception: that it is lawful to establish and administer charitable instruments for the benefit of people with a particular disability (e.g. that the Royal Blind Societies can operate without having to extend their services to people who are not blind).

As such, inclusion of the charities exception in Standards would appear to add nothing, other than probable confusion similar to that which appears to have existed regarding the effect of this exception in the DDA itself.

Relationship to other laws

Submissions generally supported the preservation of State and Territory laws on discrimination. One submission requested a clearer statement that Standards would apply notwithstanding any lower standards in State or Territory laws.

Secretariat comment

Clearly Standards would apply notwithstanding lower standards in State or Territory laws by virtue of section 109 of the Constitution. A statement to this effect could be included without substantive change.

Procedural obligations

A number of submissions argued for reporting requirements, such as a requirement for employers to develop plans on achieving equal opportunity for people with a disability.

Secretariat comment:

The notes accompanying the draft Standards indicated that procedural obligations of this kind could be validly imposed under the present Standards making power in the DDA, even if such a provision were decided to be desirable.

Review mechanism

There was considerable support in submissions for Standards expressly including a provision for review within a definite period.

Secretariat comment

While it is difficult to see how a requirement contained within in the Standards that they be reviewed could be legally binding (making it an unlawful act of discrimination for the Attorney-General or HREOC to fail to review the Standards within a set period does not appear possible or to the point), a commitment to review was inserted in the draft Transport Standards on the basis that, enforceable or not, such a commitment would be honoured.

Advice from Attorney-General's Department may assist in resolving the approach to be taken to this issue, by clarifying whether the sunset and review provisions of the Legislative Instruments Act would now be applicable to Standards.