Initial Draft: Disability Standards for Employment

DRAFT FOR PUBLIC COMMENT: 1996

Comments in response to these draft Standards should be sent by 29 November 1996 to: Disability Discrimination Commissioner GPO Box 5218 SYDNEY NSW 2001 or e-mail comments to: disability@humanrights.gov.au

DRAFT DDA DISABILITY STANDARDS: EMPLOYMENT

Index

PART A: WHAT ARE THESE STANDARDS AND WHO DO THEY APPLY TO?

1. Introduction

2. What are these Standards intended to do?

3. Who has obligations under these Standards?

3.1 Who may be liable for their own actions

3.2 When may you be liable for another person's actions

4. Who is protected by these Standards?

4.1 These Standards apply to people with a disability, as employees or potential employees

4.2 Who is a person with a disability?

PART B: WHAT OBLIGATIONS ARE THERE FOR EMPLOYERS UNDER THESE STANDARDS?

5. Obligations not to discriminate and to make reasonable adjustments

5.1 Other obligations which continue to apply

6. When do obligations under these Standards apply?

7. What is discrimination by less favourable treatment

7.1 Less favourable treatment is discriminatory if it is because of disability

7.2 A requirement for reasonable adjustment does not excuse less favourable treatment

7.3 Some less favourable treatment is permitted if a person cannot perform the inherent requirements of the job

7.4 Distinctions based on productivity are permitted if applied equally

7.5 Rules which apply equally are not direct discrimination, but may be indirect discrimination

8. What is discrimination by treatment which is less favourable in its impact

8.1 Unreasonable treatment with adverse impact related to disability

8.2 What circumstances should be considered in deciding whether treatment is reasonable

8.3 Rules etc. required by the inherent requirements of the job are permitted

9. What are reasonable adjustments

9.1 Purposes for which reasonable adjustments are required

9.2 Types of adjustments which may be required

9.3 Information provided by or on behalf of person with a disability should be considered

9.4 Limits of reasonable adjustment

9.5 Employers may make adjustments beyond those required by these Standards

10. Information may not be requested for discriminatory purposes

11. Harassment

12. Inherent requirements of the job

13. Unjustifiable hardship

PART C: EXCEPTIONS

14. General exceptions

15. Specific exceptions

15.1 Modified wage based on productive capacity

15.2 Combat and related duties

15.3 Domestic duties at the employer's home

PART D: EFFECT OF NON-COMPLIANCE WITH THESE STANDARDS

16. DDA provisions which apply to unlawful acts apply to non-compliance with these Standards

PART A: What are these Standards and who do they apply to?

1. Introduction

The Disability Discrimination Act 1992 ("the DDA") allows the federal Attorney-General to make disability standards about employment (and other areas).

Actions which do not comply with these Standards are unlawful acts under the DDA. Compliance with these Standards is a defence to complaints under the DDA.

2. What are these Standards intended to do?

These Standards are intended to :

assist employers to comply with the DDA;
clarify rights and responsibilities under the DDA;
clarify key concepts for making decisions under the DDA, such as discrimination, harassment, reasonable adjustment, the inherent requirements of a job, and unjustifiable hardship;
clarify exceptions and limits to unlawful discrimination;
provide more certainty in resolving disputes, within enterprises or through formal complaint processes;
operate in conjunction with other laws and standards regulating employment;
be flexible, to deal appropriately with diverse and changing circumstances of individuals, workplaces and enterprises; and
promote the objects of the DDA.

Terms used in these Standards are intended to have the same meaning as in the DDA except where these Standards give a different or additional meaning.

3 Who has obligations under these Standards?

3.1 Who may be liable for their own actions

These Standards apply to actions by an employer.
They also apply to actions by a person acting or purporting to act on behalf of an employer.
Section 11 of these Standards, about harassment, also applies to harassment by an employee.

3.2 When may you be liable for another person's actions

In some circumstances, a person may be liable under the DDA for non-compliance with these Standards by other persons.

The DDA imposes liability for:

causing, instructing, inducing, aiding or permitting unlawful acts (under DDA section 122); or
unlawful acts of agents or employees, if the principal or employer has not taken reasonable precautions and exercised due diligence to prevent these acts (under DDA section 123).

4. Who is protected by these Standards?

4.1 These Standards apply to people with a disability, as employees or potential employees

These Standards apply to actions affecting a person with a disability as an employee or as a person seeking employment.

They do not apply to discrimination against:

contract workers or people seeking to become contract workers;
commission agents or people seeking to become commission agents;
members of a partnership or people seeking to become partners; or
associates of a person with a disability.

4.2 Who is a person with a disability?

The definition of "disability" in the DDA, and for the purpose of these Standards, is:

total or partial loss of the person's bodily or mental functions; or
total or partial loss of a part of the body; or
the presence in the body of organisms causing disease or illness; orthe presence in the body of organisms capable of causing disease or illness; or
the malfunction, malformation or disfigurement of a part of the person's body; or
a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

It includes a disability that:

presently exists; or
previously existed; or
may exist in the future; or
is imputed to a person.

A person with a disability for the purposes of these Standards includes a person who has more than one disability.

Discrimination because of disability includes discrimination because a person with a disability:

is accompanied by, possesses or uses a palliative or therapeutic device or an auxiliary aid;
is accompanied by an interpreter, reader, assistant, or carer; or
possesses, or is accompanied by a guide dog, hearing dog, or other animal which is trained to assist the person to alleviate the effect of the disability.

PART B: What obligations are there for employers under these Standards?

5. Obligations not to discriminate or harass and to make reasonable adjustments

These Standards require employers (and other people as specified in section 3.1):

not to discriminate against a person with a disability, by less favourable treatment or by treatment which is less favourable in its impact;
to make reasonable adjustments where required;
not to ask questions for discriminatory purposes; and
not to harass a person with a disability in relation to employment.

5.1 Other obligations which continue to apply

Matters which are covered by the existing provisions of part II of the DDA remain subject to those provisions if they are not covered by these Standards.

Nothing in these Standards limits the obligations of an employer under laws other than the DDA. This includes:

State and Territory laws regarding discrimination;
laws about rehabilitation or compensation of employees following an injury or illness;
laws about protection of health and safety;
laws about unfair dismissal.

6 When do obligations under these Standards apply?

The requirements of these Standards not to discriminate; to make reasonable adjustments; not to ask for information for the purpose of unlawful discrimination, and not to harass a person with a disability, apply in relation to:

(a) arrangements made for the purpose of determining who should be offered employment (including advertising, provision of job information, application forms, interview arrangements, selection tests, examinations and other inquiries);

(b) determining who should be offered employment;

(d) the terms or conditions of employment that the employer affords an employee, including:

wages, salary or other payments;
duties performed;
performance requirements;
conduct and attendance requirements;
occupational health and safety protection;
equipment and facilities provided;
information and communication on work-related issues;
work environment;
supervisory and management arrangements;
leave entitlements;
superannuation entitlements;
workers compensation arrangements;

(e) opportunities for promotion, transfer or training, including training provided outside the workplace on behalf of an employer;

(f) any other benefits associated with employment, including recreational facilities;

(g) dismissal of an employee, or other termination of employment; and

(h) any other detriment, including in requiring or disclosing information in relation to a person's disability.

The obligation not to harass a person with a disability also applies in any other circumstances in relation to employment.

These requirements are subject to the exceptions set out in sections 14 and 15.

7. What is discrimination by less favourable treatment

Discrimination by less favourable treatment is also known as direct discrimination.

7.1 Less favourable treatment is discriminatory if it is because of disability

It is discrimination under these Standards to treat a person less favourably, because of his or her disability, than a person without that disability would be treated, in the same or similar circumstances.

A person is treated less favourably by treatment which is:

different; and
disadvantageous, or reasonably regarded by the person as disadvantageous.

7.2 A requirement for reasonable adjustment does not excuse less favourable treatment

The fact that a person with a disability may require reasonable adjustments to be made is not a relevant difference in circumstances.

7.3 Some less favourable treatment is permitted if a person cannot perform the inherent requirements of the job

It is not discrimination by less favourable treatment because of disability to:

fail or refuse to employ a person for a job; or
fail or refuse to transfer or promote the person to a job; or
terminate the person's employment in a job,

if the person is unable, or would be unable, to perform the inherent requirements of that job, and this inability cannot be remedied by making a reasonable adjustment.

7.4 Distinctions based on productivity are permitted if applied equally

It is not discrimination to treat a person with a disability less favourably because the person is or would be less productive as an employee, if:

(a) the difference in productivity (whether in relation to quantity or quality or competence of performance) is not able to be remedied by making reasonable adjustment; and

(b) a person without that disability who is comparably less productive would receive comparable treatment.

7.5 Rules which apply equally are not direct discrimination but may be indirect discrimination

It is not discrimination by less favourable treatment to require a person with a disability to comply with a rule, requirement or condition, if the same or a similar rule, requirement or condition is, or would be, applied in a comparable manner regarding persons who do not have that disability, whether or not the person's inability or failure to comply with the rule, requirement or condition is because of his or her disability.

A rule, requirement or condition which is not reasonable may involve indirect discrimination under section 8 of these Standards whether or not it is applied equally, if it disadvantages people with a disability.

8. What is discrimination by treatment which is less favourable in its impact

Discrimination by treatment which is less favourable in its impact is also known as indirect discrimination. Section 8.1 defines this form of discrimination.

8.1 Unreasonable treatment with adverse impact related to disability

It is discrimination under these Standards to impose, apply or maintain a rule, requirement, condition, practice or other treatment which:

has the effect of disadvantaging a person with a disability, compared to the effect which it has or would have on persons who do not have that disability; and
is not reasonable;

whether or not the rule, requirement, condition, practice or other treatment is also applied to persons without that disability.

8.2 What circumstances should be considered in deciding whether treatment is reasonable

In determining whether a rule, requirement, condition, practice or other treatment is reasonable, all relevant circumstances should be considered, including:

its purpose; and
the importance of that purpose in the circumstances; and
whether there are other means of achieving that purpose; and
whether those other means of achieving the purpose were reasonably able to be identified and implemented in the circumstances; and
any changes over time in the importance of that purpose or means of achieving that purpose; and
the nature and extent of the disadvantage resulting from the rule, requirement, condition, practice or other treatment; and
any relationship of the rule, requirement, condition, practice or other treatment to previous discrimination; and
whether removal or modification of the rule, condition, requirement, practice or other treatment would impose unjustifiable hardship on any person or entity.

8.3 Rules etc required by the inherent requirements of the job are permitted

If a rule, requirement, condition, practice or other treatment is part of, or made necessary by, the inherent requirements of the job, its removal or modification is not required.

9. What are reasonable adjustments

Reasonable adjustments are adjustments which:

are required for one or more of the purposes set out in section 9.1; and
are adjustments of the type set out in section 9.2; and
are not excluded by the exceptions set out in section 9.4; and
the employer is aware, or should reasonably be aware, were required and possible.

In deciding whether an employer should reasonably have been aware an adjustment was required and possible, all the circumstances are to be considered. Relevant circumstances may include:

information, advice, equipment and methods reasonably available at the relevant time;
information provided or failed to be provided by the person with a disability concerned; and
inquiries which it would have been reasonable to undertake in the circumstances.

9.1 Purposes for which reasonable adjustments are required

These Standards require reasonable adjustments when they are required for the purpose of:

(a) enabling a person with a disability to have equal opportunity to be considered for selection, appointment, promotion, transfer, training or other employment opportunity; or

(b) enabling a person with a disability to perform the inherent requirements of the relevant job; or

(c) enabling a person with a disability to perform any other job related requirements which apply in the circumstances concerned; or

(d) enabling a person with a disability to enjoy equal terms and conditions of employment with other employees in comparable circumstances; or

(e) enabling a person with a disability to participate in and benefit from work related facilities, programs or benefits on equal terms with other employees.

9.2 Types of adjustments which may be required

Reasonable adjustment may include one or more of the following types of adjustment:

(a) adjustments to workplace or work related premises, equipment or facilities (including provision of additional equipment or facilities); or

(b) adjustments to work related communications or information provision; or

(d) adjustments to work arrangements, including in relation to hours of work and use of leave entitlements; or

(e) adjustments to methods used for testing, assessment or selection; or

(f) provision of training, interpreters, readers, attendants or other work related assistance; or

(g) permitting or facilitating a person to use equipment or assistance provided by the person with a disability or by another person or organisation; or

(h) other similar work-related adjustments.

9.3 Information provided by or on behalf of person with a disability should be considered

In determining what reasonable adjustments may be required:

(a) consideration should be given to any information provided by or on behalf of a person with a disability concerned, regarding effective or preferred adjustments; but

(b) a person's preferred form of adjustment does not need to be provided if another adjustment would be effective in achieving the purpose of the adjustment, or if an exception in section 9.4 applies.

9.4 Limits of reasonable adjustment

(a) Reasonable adjustment does not include adjustments which would impose an unjustifiable hardship on any person or entity.

(b) Reasonable adjustment does not include an adjustment which is not able to be implemented within a reasonable time having regard to work requirements and organisation in the particular circumstances. This exception does not apply to excuse unreasonable delay by an employer in making an adjustment.

(c) Reasonable adjustment does not include provision of equipment or assistance which is primarily required for non-employment related use.

(d) Reasonable adjustment does not include changes to the inherent requirements of the job concerned, creation of a different job, or transfer to a different job, other than as part of a program of training or rehabilitation reasonably likely to enable the person to perform the requirements of the initial job concerned within a reasonable period.

9.5 Employers may make adjustments beyond those required by these Standards

Nothing in these Standards prevents an employer from making adjustments, including for the purposes set out in paragraph 9.1, beyond those required by these Standards.

10. Information must not be requested for discriminatory purposes

10.1 An employer must not request information, in relation to a person with a disability, for the purpose of an act which is or would be unlawful under these Standards.

10.2 This provision is additional to the requirement of these Standards not to discriminate and should be read with the exceptions contained in sections 14 and 15.

11. Harassment

11.1 An employer must not harass a person with a disability, who is an employee or seeking employment, in relation to the disability.

11.2 For the purposes of these Standards, harassment includes actions because of or in relation to the disability of a person:

which are intended to humiliate, offend, intimidate or distress; or
which are not reasonably intended for a purpose permitted by these Standards, and which cause and should reasonably have been expected to cause humilation, offence, intimidation or distress.

11.3 This provision is additional to the requirement of these Standards not to discriminate and should be read with the general exceptions contained in section 14.

12. Inherent requirements of the job

These Standards use the concept of "the inherent requirements of the job" in defining discrimination and defining exceptions to the requirement not to discriminate. The following principles should be taken into account in interpreting this concept.

12.1 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.

12.2 In the event of a complaint, the complaint handling authority (HREOC, State or Territory equal opportunity authorities, or the Federal Court) may need to determine what are the inherent requirements of that job. In this assessment the employer's view is central but is subject to review.

12.3 In determining the inherent requirements of a job, relevant factors may include:

(a) the work required in practice by the employer to be performed by employees in the position concerned and comparable positions; and

(b) evidence regarding any need for duties which are additional to those currently performed but which may require performance in an emergency or at periods of high workload; and

(c) the extent to which a particular requirement concerns a result to be achieved rather than a means for achieving a result; and

(d) the circumstances in which the work is performed or to be performed; and

(e) the terms of applicable awards or agreements including applicable competency standards; and

(f) the terms of any applicable duty statement; and

(g) any mandatory requirements which apply because of the provisions of another law, including in relation to health and safety;

(h) any mandatory qualifications for the position which apply because of the provisions of another law.

12.4 Market or customer service requirements and industrial circumstances may be relevant to determination of the inherent requirements of a job, but not so as to authorise or excuse otherwise unlawful actions in giving effect to discriminatory preferences of customers, other employees or other persons.

13. Unjustifiable hardship

13.1 For the purposes of these Standards, the term "unjustifiable hardship" is to be interpreted and applied having regard to the objects of the DDA, in particular the object of removing discrimination on grounds of disability as far as possible.

13.2 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.

Decisions regarding unjustifiable hardship may include considering the following factors:

13.2.1 Are there any net financial costs to the employer to even need justifying?

For there to be unjustifiable hardship, there needs to be some hardship to justify.

Where a claim of unjustifiable hardship relates in part or wholly to cost, consideration should be given to the net costs (or benefits) which are identifiable or reasonably likely to result overall for the employer, rather than only the direct or upfront costs.

This may require taking into account:

(a) direct costs; and

(b) any offsetting tax, subsidy or other financial benefits available in relation to the adjustment or in relation to the employment of the person concerned; and

(c) indirect costs and/or benefits, including in relation to productivity of the position concerned, other employees and the enterprise; and

(d) any increase or decrease in sales, revenue or effectiveness of customer service; and

(e) how far an adjustment represents any additional cost above the cost of equipment or facilities which are or would be provided to an employee similarly situated who does not have a disability; and

(f) how far an adjustment is required by other applicable laws, standards or agreements; and

(g) relevant skills, abilities, training and experience of a person seeking the adjustment.

13.2.2 How far is the employer in a position to be able to bear the costs of an adjustment?

Where an adjustment involves costs, determination of unjustifiable hardship may require determination of whether the financial position of the employer allows those costs to be met. This does not mean that any adjustment which there are funds to provide must be provided, or that costs will always be the only factor to consider. Where the ability of an employer to meet costs of an adjustment is an issue, consideration may be required of issues such as:

(a) the employer's level of profitability or loss making; and

(b) amount of any public funding provided to the enterprise; and

(d) 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; and

(e) any effect which the adjustment concerned is reasonably likely to have on the financial viability of a person or organisation required to comply, in particular in relation to small business, or on the viability of the position concerned or the positions of other employees.

13.2.3 Is there any other benefit or detriment to any person that should be considered?

In addition to the costs (if any) of making the adjustment and the benefit of providing equal opportunity, treatment or participation to the person with a disability directly concerned, consideration may be required of:

(a) any benefit, or detriment, of the adjustment concerned regarding access or opportunity for other employees or potential employees, customers or clients or other persons who would reasonably foreseeably be affected;

(b) benefit or detriment of the adjustment concerned for the effective organisation of work in the enterprise or workplace concerned, having regard to:

the number of employees;
the spatial organisation of work;
the nature of work to be performed;
relevant customer requirements;
workforce planning needs;
any "down time" or interruption to production involved in making the adjustment;
any other factors affecting the efficiency, productivity, success, and (where relevant) competitiveness of the enterprise;

(d) the nature and likelihood of any benefit or detriment to health or safety of any person in making the adjustment;

(e) the nature and likelihood of any environmental benefit or detriment as a result of making the adjustment;

(f) whether the adjustment concerned would assist, or interfere, with compliance with applicable provisions of other relevant laws, standards or agreements; and

(g) the nature and likelihood of any other benefit or detriment as a result of making the adjustment.

13.2.4 Action Plan

Where the employer concerned is a service provider and has given an Action Plan to the Human Rights and Equal Opportunity Commission under section 64 of the DDA, consideration of unjustifiable hardship will include any relevant terms of that Action Plan and any relevant evidence regarding its implementation.

13.3 The provision in the DDA for protection of personal or commercial information from unreasonable disclosure applies in relation to material disclosed for the purpose of determining issues of reasonable adjustment and unjustifiable hardship, and in other relevant circumstances in relation to these Standards.

PART C: EXCEPTIONS

14. General exceptions

14.1 Nothing in these Standards makes unlawful:

(a) actions which are reasonably intended to provide equal opportunity to people with a disability or to persons with a particular disability, or to provide benefits to people with a disability or a particular disability in relation to specific needs (including determining eligibility for such benefits); or

(b) inquiries, examinations or actions which are reasonably intended for the purpose of determining a person's ability to perform the inherent requirements of the relevant job; or

(c) inquiries, examinations or actions which are reasonably intended to determine a person's ability to comply with any other job related requirements which do not involve unlawful discrimination; or

(d) inquiries, examinations or actions which are reasonably intended for the purpose of determining the need for and nature of any reasonable adjustment required, including in relation to whether such adjustment may be made without unjustifiable hardship; or

(e) inquiries, examinations or actions which are reasonably necessary to determine entitlements and obligations of the employer, employee or potential employee, or other relevant parties, in relation to superannuation or insurance including workers compensation; or

(f) distinctions, 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; or

(g) actions in direct compliance with a law which is a prescribed law for the purposes of section 47 of the DDA; or

(h) measures which are reasonably necessary in the circumstances to protect the health or safety of any person.

14.2 In determining whether an inquiry, examination or action is reasonably intended, or reasonably necessary (as applicable), for the purposes set out in paragraph 14.1:

(a) the matter should be considered on the basis of the information reasonably available at the time and in the circumstances of the relevant decision or action; and

(b) the obligation to make any reasonable adjustments applicable should be taken into account.

15 Specific exceptions

15.1 Modified wage based on productive capacity

These Standards do not make it unlawful to provide a lower rate of payment which complies with an order or award of a court or tribunal having power to fix minimum wages:

to the extent that such an order or award specifically provides for pay rates for persons who would otherwise be eligible for a disability support pension;
where the salary or wages are determined by reference to the capacity of the person.

15.2 Combat and related duties

(a) These Standards do not apply to discrimination (but do apply to harassment) on the ground of a person's disability in connection with employment, engagement or appointment in the Australian Defence Force:

in a position involving the performance of combat duties, combat-related duties or peacekeeping service; or
in prescribed circumstances in relation to combat duties, combat-related duties or peacekeeping service; or
in a position involving the performance of duties as a chaplain or a medical support person in support of forces engaged or likely to be engaged in combat duties, combat-related duties or peacekeeping service.

(b) The terms "combat duties" and "combat related duties" have effect as specified in the Regulations. "Prescribed circumstances" are circumstances prescribed by the Regulations.

15.3 Domestic duties at the employer's home

These Standards do not apply to discrimination (but do apply to harassment) in arrangements made for the purpose of determining who should be offered employment, or in determining who should be offered employment, in relation to domestic duties to be performed at the employer's private home.

PART D: EFFECT OF NON-COMPLIANCE WITH THESE STANDARDS

16. DDA provisions which apply to unlawful acts apply to non-compliance with these Standards

Actions which do not comply with these Standards are unlawful acts under the DDA. An action which does not comply with these Standards may include failing, refusing or proposing to act. Any provision of the DDA which applies to unlawful acts also applies to actions which do not comply with these Standards.

This includes:

provision for complaints and enforcement proceedings, by or on behalf of a person aggrieved by discrimination (under part 4 of the DDA);
liability for offences, including victimisation, inciting unlawful acts, or advertising an intent to do an unlawful act (under DDA sections 42 to 44);
liability for causing, instructing, inducing, aiding or permitting unlawful acts (under DDA section 122);
liability for unlawful acts of agents or servants which the principal or employer has not taken reasonable precautions and exercised due diligence to prevent (under DDA section 123).

NOTES ON THE DRAFT STANDARDS

Where have these draft Standards come from?

These draft Standards have been issued by the Disability Standards Sub-Committee of the National Committee on Discrimination in Employment and Occupation.

The Sub-Committee includes representatives of the National Coalition for Development of Disability Standards; the Australian Chamber of Commerce and Industry; the Australian Council of Trade Unions; the Council for Equal Opportunity in Employment; the Disability Discrimination Commissioner; the Victorian Equal Opportunity Commission; and the Federal Government through the Department of Employment, Education, Training and Youth Affairs, the Department of Industrial Relations and the Attorney-General's Department.

This draft has been prepared taking into account submissions received in response to the Resource Paper and Discussion Paper issued by the Sub-Committee in July 1995. Submissions were received from people and organisations in the disability community; employers and employer organisations; trade unions; and Federal and State government departments.

Where should comments on these draft Standards be sent?

Comments in response to these draft Standards should be sent, by 29 November 1996, to:

Disability Discrimination Commissioner

GPO Box 5218 Sydney 2001

or e-mail comments to: disability@humanrights.gov.au

Where are more copies of the draft Standards available?

Further copies of the draft Standards and these Notes are available from HREOC in standard print, large print, braille or on tape. Contact Susan Ives by phone on 1800 021 199 (toll free) or (02) 9284 9761; fax on 02 9284 9789; or TTY on 1800 620 241 (toll free).

You can also obtain the draft Standards and these Notes online, in HTML format, from HREOC's site on the World Wide Web, at: http://www.hreoc.gov.au/hreoc

Why have these draft Standards been issued?

The Disability Discrimination Act ("DDA") allows the Attorney-General to make Disability Standards in a number of areas, including employment. This power was included in the DDA to allow the rights and obligations in the DDA to be made easier to understand, comply with and enforce.

These draft Standards are issued for the purpose of public comment, as part of a consultation process before any Standards are introduced. The draft Standards do not represent any final decision on the form of Standards, or a definite decision that Standards should be introduced in this area. Members of the Sub-Committee have not necessarily endorsed the draft Standards by issuing them for comment.

This draft has been issued for a three month public comment period. After considering comments received, the Sub-Committee will consider whether to release a revised draft for further comment. After that, the Sub-Committee will consider whether to recommend to the Attorney-General to submit the draft Standards to the Federal Parliament for approval.

What would the effect of the Standards be if they are approved?

Actions which do not comply with a Disability Standard would be unlawful acts under the DDA in the same way as actions which do not comply with the existing anti-discrimination provisions of part II of the DDA. Actions which do comply with a Disability Standard are protected from being unlawful acts under the existing anti-discrimination provisions of the DDA.

Relevant procedural provisions of the DDA would apply automatically to these Standards if adopted.

This includes:

provision for complaints and enforcement proceedings, by or on behalf of a person aggrieved by discrimination (under part 4 of the DDA);
liability for causing, instructing, inducing, aiding or permitting unlawful acts (under DDA section 122);
liability for offences, including victimisation, inciting unlawful acts, or advertising an intent to do an unlawful act (under DDA sections 42-44); and
liability for unlawful acts of agents or servants which the principal or employer has not taken reasonable precautions and exercised due diligence to prevent (under DDA section 123).

What is in these draft Standards?

These Standards:

make discrimination in employment unlawful;
require employers to make reasonable adjustments;
define discrimination;
define reasonable adjustments;
prohibit questions for discriminatory purposes;
define and prohibit harassment;
require certain factors to be considered in making decisions about inherent requirements of the job;
require certain factors to be considered in making decisions about unjustifiable hardship;
provide for limits and exceptions, including exceptions which refer to the concepts of inherent requirements of the job and unjustifiable hardship; and
restate some definitions from the DDA for convenience.

What issues have been left to the existing DDA provisions?

Because of the limits of the power to make Disability Standards, the draft Standards would not apply to contract or commission work, partnership or other economic relationships covered by the DDA. For the same reason, the draft Standards would not apply to discrimination in relation to an associate of a person with a disability. These issues would continue to be covered by the existing anti-discrimination provisions of the DDA.

How does this draft relate to what submissions said?

The Sub-Committee has tried to take account of the issues raised in submissions in preparing the draft Standards, although the draft Standards do not follow every suggestion made in submissions. The following notes discuss major issues raised by submissions, and the response of the draft Standards to these issues.

Should DDA Standards in relation to employment be introduced?

Most submissions in response to the papers issued by the Sub-Committee in 1995 supported preparation of draft Standards as the basis for further consideration of whether Standards should be introduced in this area.

How detailed should Standards be?

Most submissions supported Standards being drafted on a relatively non-prescriptive basis. This means that Standards should provide clearer principles for decision making but should not try to specify particular results and requirements in detail for particular situations.

Some submissions did identify particular areas as appropriate for more prescriptive approaches. However, there were widely diverging and conflicting views on which areas these should be, and on the content of prescriptive detail to be adopted in any area.

The consensus view of the Sub-Committee is that Standards should clarify existing rights and obligations under the DDA rather than increasing or reducing them. This appears difficult to achieve unless Standards maintain some of the flexibility of the existing provisions of the DDA, which allows for the circumstances of different cases to be considered as they arise.

The Sub-Committee's view at present is that a non-prescriptive approach to draft Standards would be appropriate. Compared to more detailed, prescriptive Standards, such an approach appears better able accommodate the diversity of employment circumstances and of disability and abilities. A non-prescriptive approach also appears better able to accommodate changes over time in work organisation and in needs and possibilities for reasonable adjustment, in a manner consistent with the objects and requirements of the DDA. Members of the Sub-Committee also consider that a non-prescriptive approach will be more consistent with the needs of productive and efficient operation of workplaces.

Should DDA Standards contain timetables for implementation?

Some submissions strongly supported definite timetables. Others opposed this, on the same basis as opposing other elements of prescriptiveness. This draft does not provide for timetables by reference to dates or events. Because of the non-prescriptive approach taken in this draft, timetables are less relevant than if the Standards provided for more specific and detailed obligations. The general principles contained in the draft Standards are intended to set out obligations which already apply under the DDA.

Amendments to the power to make DDA Standards

Submissions indicated varying views. Those from employer organisations generally opposed any extension to relationships other than employment. A number of other submissions supported the DDA providing for Standards regarding other relationships including contract work.

Because, at present, the power to make Disability Standards in this area refers only to employment, this draft has been prepared referring only to employment, leaving any possible extension for later consideration.

Different requirements for different employers

A number of submissions supported numerical cutoffs or formulas regarding particular obligations, in particular to provide assurance to smaller employers regarding the extent of their obligations. This draft does not contain any such explicit cutoffs or formula. It has not appeared possible to specify these in a manner which can be relied on not to undermine or increase existing rights and obligations.

Consistent with the general non-prescriptive approach supported by submissions, this draft continues to rely on case by case application of the concept of unjustifiable hardship, although with more detailed indication of relevant factors than the DDA provides at present.

This draft does not attempt to deal separately with Commonwealth Government employment. Clearly, however, some concepts, in particular in relation to unjustifiable hardship, would apply differently to a large Commonwealth department than to a small private employer.

Exceptions and exemptions

This draft seeks to reflect current DDA exceptions, because of the general consensus that Standards should maintain the existing level of rights and obligations.

Further administrative exemptions, from HREOC or other decision maker (such as are available under DDA section 55 in relation to the existing provisions of the DDA), have not been provided for in this draft. This is because section 55 does not apply to provisions of the DDA relating to Standards.

A number of exceptions are included which do not appear expressly in the same terms in the DDA at present. These are intended to reflect and clarify the effect of existing provisions, rather than to diminish existing rights and obligations.

A number of exceptions contained in the DDA (in relation to migration, charities and certain legislation providing for benefits) are not reproduced in the draft Standards as they are not considered relevant to employment issues dealt with in this draft.

Unjustifiable hardship

Most submissions supported the Standards using "unjustifiable hardship" as a key concept for defining the limits of the obligations of employers in a similar way as the DDA uses the concept.

Consistent with the general view that Standards on employment should not be highly prescriptive, this draft maintains the current position that all relevant factors should be considered. However, the draft Standards do try to provide more indication of factors which may be relevant, and a clearer structure for considering these factors.

Reasonable adjustment

Submissions generally supported Standards making clearer the existence and extent of the duty under the DDA to make reasonable adjustment. One submission opposed such a duty being imposed, apparently on the basis of a misconception that the DDA does not already require reasonable adjustment. Most submissions however accepted that there is such a duty and that it would be useful for this duty to be clarified.

The draft Standards try to pull together and present more clearly the effect of relevant provisions of the DDA on the issue of reasonable adjustment, including sections 5(2), 6, 11, and 15(4).

The draft Standards do not attempt to prescribe particular adjustments as always required, or set out comprehensively the types of reasonable adjustment which may be required. The Sub-Committee agrees with arguments presented by submissions against these approaches. Instead, the draft Standards provide some principles for making decisions in this area.

Some submissions expressed concern that reference to "reasonable" adjustment could cause problems, since the term "reasonable" might be interpreted as limiting the adjustments required more than the DDA does at present. These submissions suggested that the word "reasonable" should not be used in this area.

At this stage the Sub-Committee has not been able to identify any more appropriate term than "reasonable adjustment" to use in this area, or a term which is as widely used and understood.

Submissions generally accepted that a useful role for Standards would be to clarify the relationship between concepts of unjustifiable hardship and reasonable adjustment (as well as other key concepts in the DDA). The draft Standards use the concept of unjustifiable hardship (together with other key concepts) in determining the limits of required reasonable adjustment. The term "reasonable adjustment" has been used because it appears to be relatively widely accepted. It has not been used to put further limits on required adjustments, beyond the limits indicated in part 9 of the draft itself.

Use of the term "reasonable adjustment" is not intended to place a burden of proof on people with a disability to show that required adjustments are also reasonable. It would be up to a person who claimed that unjustifiable hardship or another exception applied to them to demonstrate this.

Inherent requirements

As requested by a number of submissions, the draft seeks to provide a checklist of factors to consider in determining what are the inherent requirements of the job. This checklist is not meant to be comprehensive or exhaustive.

Explanatory material included in this section of the draft seeks to give due emphasis to the capacity of employers (within the framework of relevant laws, awards and industrial processes) to determine the job to be done. In particular, employers may determine whether to organise jobs on the basis of multi-skilling or on the basis of more distinct occupational classifications. The draft also seeks to give due emphasis to the fact that in the event of a dispute, external review may be required (by HREOC or the courts) of the inherent requirements of that job.

The draft also emphasises the role of reasonable adjustment which may be required to enable a person with a disability to perform the inherent requirements of a job.

There is an issue related to inherent requirements where the draft Standards may appear to be amending the effect of the DDA, but in fact are not. Section 15 of the DDA refers to inherent requirements as an exception only in relation to decisions to employ or dismiss a person. The draft Standards also apply the same exception to decisions to promote or transfer an existing employee to a new position. The intention of the DDA is clearly that people do not have to be given jobs which they cannot do. The existing provisions of the DDA would give the same result, on the basis that a requirement that a person be able to perform the inherent requirements of the job would always be a reasonable condition or requirement and therefore would not be discriminatory under section 6 of the DDA. It appears appropriate for Standards to state this result directly.

State and Territory equal opportunity laws

Submissions did not support Standards seeking to vary the existing relationship between the DDA and State and Territory equal opportunity laws, and the draft does not seek to do this. The position would be, therefore, that State and Territory equal opportunity laws in relation to disability continue to operate, except in any case where they are directly inconsistent with the Standards. Equally, as with the present provisions of the DDA, nothing in a State or Territory equal opportunity law overrides the Standards' own application.

Unfair dismissal laws

Most submissions which dealt with this issue identified the interaction of Standards with unfair dismissal laws as an issue to be considered in another context (that is, as an issue regarding the procedural provisions of the DDA and industrial relations laws) rather than within Standards.

Review and monitoring of Standards

The draft does not provide for reporting requirements or additional monitoring arrangements. There were conflicting views about whether such arrangements would be desirable. As indicated by the Resource Paper, provision for reporting requirements appears to require amendment to the DDA rather than being able to be made through Standards under the existing provisions of the DDA.

There was support in submissions for regular review of Standards. The draft does not contain any specific provision regarding review at present. The government is considering providing for compulsory review of delegated legislation more generally, by imposing a general five-year sunset clause. However, it appears that this will not automatically apply to Standards. Submissions would be welcome on whether a sunset clause should also apply to Standards or whether some other review mechanism should be adopted.

Information and education

There was considerable support in submissions for information and education programs accompanying Standards. The draft does not make any provisions in this respect as it does not appear that Standards themselves could require such programs. The Sub-Committee will consider issues in this area further as development of Standards progresses. This will include considering more detailed guidelines which may accompany Standards, and possibilities for improved information and guidance on practical issues in relation to reasonable adjustment.

Specific employment issues

Consistent with general support for a non-prescriptive approach, the draft does not provide detailed requirements applying to particular employment decisions or issues identified in the Resource Paper. Instead, it seeks to clarify applicable general principles, including the meanings of discrimination, reasonable adjustment, inherent requirements, unjustifiable hardship, and various exceptions and limitations; and states (in effect) that these principles apply to the range of employment issues covered by the DDA.

Non-exhaustive lists of matters covered under the terms of DDA section 15 have been added at some points. The aim of these lists is to make these provisions more user friendly, rather than to change their legal effect.

Two areas are addressed more specifically: harassment and discriminatory questions.

Harassment

A definition of disability harassment has been attempted in this draft (which, as with other provisions, should be read together with the general exceptions included). Submissions generally agreed that the meaning of harassment under the DDA needed clarification.

Discriminatory questions

The prohibition currently contained in DDA section 30 of questions for discriminatory purposes has been restated in clearer terms, which submissions generally agreed would be useful. This provision is not intended to provide (any more than the current section 30 provides) a complete code on permitted and prohibited inquiries, since the general discrimination provisions and the general exceptions also apply to these issues.

Some submissions requested that the draft Standards should prohibit particular questions, inquiries or examinations. This draft does not do this, because of the general preference for a non-prescriptive approach overall.

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Initial Draft: Disability Standards for Employment