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8 Legal and policy framework

The following section outlines the relevant legal and policy framework, including the international human rights framework.

8.1 International legal framework

The Convention on the Rights of Persons with Disabilities (CRPD) sets out the rights of people with disability generally and in respect of employment.[25] In particular, article 27 of the CRPD protects the right to work for people with disability. This includes:

  • The right to work on an equal basis to others;
  • The right to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions; and
  • The right to effective access to general technical and vocational training.

The CPRD also protects the following rights:

  • The right to live independently and participate fully in all aspects of life, including equal access to transport, information and communication technologies and other facilities and services;[26]
  • The right to live in the community, with choices equal to others, and to full inclusion and participation in the community;[27]
  • The right to the greatest possible independence through personal mobility;[28] and
  • The right to an adequate standard of living.[29]

Persons with disability are protected by the other core international human rights treaties, which protect the right to work, the right to just and favourable conditions of work, the right to equal opportunities for promotion in the workplace and the right to enjoy all other rights without discrimination.[30]

The Declaration on the Rights of Indigenous Peoples also specifically addresses the social and economic rights of Indigenous people with disability, including the right to non-discrimination in employment.[31]

The right to work is more than the right to earn money, though that is important. The United Nations Committee on Economic, Social and Cultural Rights has said the right to work ‘forms an inseparable and inherent part of human dignity’ and is essential for realising other human rights.[32]

8.2 Domestic legal framework

The domestic legal framework consists of anti-discrimination legislation at both Commonwealth and state/territory levels, and Commonwealth workplace relations laws – all of which prohibit discrimination on the basis of disability in the context of employment.

(a) Disability Discrimination Act 1992 (Cth) (DDA)[33]

The Disability Discrimination Act 1992 (Cth) makes it against the law to discriminate against someone on the basis of their disability.
Discrimination includes direct and indirect discrimination. [34]

Direct discrimination involves treating a person with disability less favourably than a person without disability in the same or similar circumstances.

Indirect discrimination occurs when there is a rule or policy that is the same for everyone but has an unfair effect on people with a particular disability.

The DDA protects people with disability from discrimination in many areas of public life: employment, education, access to premises, provision of goods and services, accommodation, buying land, activities of clubs and associations, sports and the administration of Commonwealth Government laws and programs.[35]

It is unlawful for an employer to discriminate on the ground of a person’s disability:

  • in offering employment, including the processes of determining who should be offered employment;
  • in the terms or conditions of employment;
  • by limiting opportunities for promotion, transfer or training, or to other benefits;
  • by dismissing the employee; or
  • by subjecting the employee to any other detriment.[36]

Employers have an obligation to provide ‘reasonable adjustments’ to allow people with disability equal participation or equal performance at work. [37] A reasonable adjustment is a necessary or appropriate modification or adjustment made to ensure or enable equal participation. It could be something like an adjustment to work hours, training or workplace equipment. An adjustment will not be reasonable if it imposes an ‘unjustifiable hardship’ on the employer. [38]

Exemptions

Under the DDA, it is not unlawful to refuse to employ or promote a person on the basis of their disability if they are unable to carry out the essential or ‘inherent’ requirements of the job, even with reasonable adjustments.[39] It is also not unlawful for an employer to terminate a person’s employment if they are unable to carry out the inherent requirements of the job because of a disability. There are also a number of other exemptions to the DDA.[40]

(b) The Fair Work Act 2009 (Cth)

The Fair Work Act 2009 (Cth) (FWA) provides that an employer must not take adverse action against an employee or prospective employee because of disability (or any other protected attribute, such as race, sex, age).[41] Adverse action includes such things as dismissing an employee, altering an employee’s position to their detriment or refusing to employ a prospective employee.

The FWA covers discrimination occurring: to someone applying for a job as an employee; to a new employee who has not started work; or to an employee at any time during employment.

(c) Remedies

If a person with disability feels that they have experienced discrimination in the context of employment, there are several ways of pursuing a complaint.

The different forums for complaining about discrimination in the workplace on the grounds of disability include:

  • The Australian Human Rights Commission. For more information visit the Commission’s complaints portal: https://www.humanrights.gov.au/complaint-information. If a complaint is not resolved by the Commission, it can be taken to the Federal Circuit Court or the Federal Court of Australia.
  • State or territory anti-discrimination agencies.[42] If a complaint is not resolved by those agencies, it can be taken through the administrative law tribunal and court system.
  • The Fair Work Commission. If a complaint is not resolved by the Fair Work Commission, it can be taken to the Fair Work Division of the Federal Circuit Court or the Federal Court of Australia.
  • The Fair Work Ombudsman, if the employer is a ‘national system employer’ under the FWA.

Discussion questions

  1. How adequately do existing laws protect Australians with disability from employment discrimination? How effective are the legal remedies for Australians with disability who have experienced employment discrimination? How could existing laws be amended or supplemented?
  2. What difficulties are there for employers in understanding and complying with legal obligations?

 

8.3 Policy

Participation of people with disability in employment is affected by Government policies in a range of different areas, including: welfare, transport, health care, education, housing, and accessibility.

There are also specific policies, programs and mechanisms developed by the Australian Government which aim to advance the employment of people with disability. The National Disability Strategy 2010-2020 sets out a ten year plan for improving life for Australians with disability, their families and their carers. Increasing access to employment for people with disability, their families and their carers is a key policy direction within the Strategy.[43]

The National Disability Agreement is an agreement between the Australian federal, state and territory governments, introduced in 2009. It relates to the provision of services for people with disability and commits all levels of government to a five percentage point increase in the number of people with disability participating in the labour force by 2018.[44]

A National Mental Health Policy (2008) and a Fourth National Mental Health Action Plan (2009-2014) have also been developed.[45] These documents outline a whole of government approach to mental health reform across areas of prevention, early intervention, care and inclusion. The Policy and Action Plan address employment of people with mental illness within the respective named priority areas of ‘participation and inclusion’ and ‘social inclusion and recovery’.

The Australian Government also has a number of mechanisms in place specifically aimed at increasing the participation of people with disability in the labour force. These include:

  • Disability Employment Services – a network of service providers that support job seekers with disability to find and keep a job; and assist employers to implement practices that support employees with disability[46]
  • Australian Disability Enterprises – government supported commercial enterprises that provide supported employment for people with disability[47]
  • Employment Assistance Fund – a fund to provide financial assistance for workplace modifications and services[48]
  • JobAccess - an advisory service which provides information about the employment of people with disability to people with disability, employers, service providers and workplace solutions.[49]

In 2011, the Australian Public Service (APS) launched its Disability Employment Strategy, As One.[50] A major initiative of the ‘As One’ Disability Strategy is the RecruitAbility scheme that supports people with disability applying for jobs in the APS. Job applicants with disability who opt into the scheme are advanced to a further stage in the application process and are provided with support once they are in jobs.[51]

The National Disability Insurance Scheme (NDIS) commenced in July 2013 and is a major reform to support services for people with permanent and significant disability.[52] The NDIS provides both direct and indirect support for people with disability to participate in employment. For example, the NDIS can support people with disability to develop individual plans that may include the goal of getting a job, and provides funding for supports such as taxi fares that enable a person with a disability to travel to work.

The Disability Support Pension (DSP) provides income support for those unable to work for 15 hours or more per week.[53] Current policy settings aim to build the capacity of recipients to participate in employment through participation requirements attached to the payment.[54] Further changes aimed at increasing employment participation for people with disability through reform to welfare payments have been flagged through the recent review of Australia’s welfare system, A New System for Better Employment and Social Outcomes.[55]

[25] Convention on the Rights of Persons with Disabilities, 2007.

[26] International Convention on the Rights of Persons with Disabilities, 2007, article 9.

[27] International Convention on the Rights of Persons with Disabilities, 2007, article 19.

[28] International Convention on the Rights of Persons with Disabilities, 2007, article 20.

[29] International Convention on the Rights of Persons with Disabilities, 2007, article 28.

[30] See International Convention on Civil and Political Rights, 1966, articles 2 and 25(c); International Covenant on Economic, Social and Cultural Rights, 1966, articles 2, 6, and 7. See also, the Convention on the Elimination of All Forms of Discrimination against Women, 1979, articles 2 and 11; and the Convention concerning Discrimination in Respect of Employment and Occupation, 1958 (ILO111), article 1.

[31] United Nations Declaration on the Rights of Indigenous Peoples, 2007, article 21.

[32] Committee on Economic, Social and Cultural Rights, General Comment No. 18, Article 6: the equal right of men and women to the enjoyment of all economic, social and cultural rights (Thirty-fifth session, 2006), U.N. Doc. E/C.12/GC/18 (2006), para 1.

[33] For a detailed discussion on the DDA, see Australian Human Rights Commission, Federal Discrimination Law (2011), chapter 5, at https://www.humanrights.gov.au/our-work/legal/federal-discrimination-law-2011 (viewed 5 April 2015).

[34] Disability Discrimination Act 1992 (Cth), sections 5 and 6.

[35] Disability Discrimination Act 1992 (Cth), Part 2, Divisions 1 and 2.

[36] Disability Discrimination Act 1992 (Cth), section 15.

[37] Disability Discrimination Act 1992 (Cth), sections 5(2) and 6(2).

[38] Disability Discrimination Act 1992 (Cth), section 4(1).

[39] Disability Discrimination Act 1992 (Cth), section 21A(1).

[40] The Australian Human Rights Commission can grant temporary exemptions from the operation of certain provisions of the Act: section 55. Other exemptions to the DDA relate to: annuities, insurance and superannuation (section 46(1)), the Defence Force (section 53(1)), compliance with a prescribed law (section 47(2)), and special measures (section 45).

[41] Fair Work Act 2009 (Cth), section 351.

[42] The state and territory agencies are: ACT Human Rights Commission, Anti-Discrimination Board of New South Wales, Anti-Discrimination Commission of Queensland, Equal Opportunity Commission Western Australia, Northern Territory Anti-Discrimination Commission, Office of the Anti-Discrimination Commission (Tasmania), South Australia Equal Opportunity Commission, Victorian Equal Opportunity and Human Rights Commission.

[43] Council of Australian Governments, National Disability Strategy (2010), p 42. At https://www.coag.gov.au/node/197 (viewed 22 May 2015).

[44] Council of Australian Governments, National Disability Agreement, (2012), p 6. At http://www.federalfinancialrelations.gov.au/content/npa/disability/national-agreement.pdf (viewed 22 May 2015).

[45] Department of Health, National mental health policy (2008). At http://www.health.gov.au/internet/main/publishing.nsf/Content/mental-pubs-n-policy (viewed 22 May 2015); Department of Health, Fourth national mental health plan: an agenda for collaborative government action in mental health 2009-2014 (2009). At http://www.health.gov.au/internet/main/publishing.nsf/Content/mental-pubs-f-plan09 (viewed 22 May 2015).

[46] See Department of Human Services, Disability Employment Services (2015). At http://www.humanservices.gov.au/customer/services/centrelink/disability-employment-services (viewed 22 May 2015).

[47] See Department of Social Services, Australian Disability Enterprises (2015). At https://www.dss.gov.au/our-responsibilities/disability-and-carers/program-services/for-service-providers/australian-disability-enterprises (viewed 22 May 2015).

[48] JobAccess, Employment Assistance Fund (2014). At http://jobaccess.gov.au/content/employment-assistance-fund (viewed 22 May 2015).

[49] JobAccess (2015). At http://jobaccess.gov.au/home (viewed 22 May 2015).

[50]Australian Public Service Commissioner, As One – Australian Public Service Disability Employment Strategy (2011). At http://www.apsc.gov.au/publications-and-media/current-publications/as-one (viewed 22 May 2015).

[51]Australian Public Service Commissioner, RecruitAbility. At http://www.apsc.gov.au/disability/recruitability (viewed 22 May 2015).

[52] See National Disability Insurance Scheme. At http://www.ndis.gov.au/ (viewed 22 May 2015).

[53] Department of Human Services, Disability Support Pension (2015). At http://www.humanservices.gov.au/customer/services/centrelink/disability-support-pension (viewed 22 May 2015).

[54] Department of Social Services, Disability Support Pension Participation Requirements (2014). At https://www.dss.gov.au/our-responsibilities/disability-and-carers/benefits-payments/disability-support-pension-participation-requirements (viewed 22 May 2015).

[55] Reference Group on Welfare Reform to the Minister for Social Services, A New System for Better Employment and Social Outcomes (2015). At https://www.dss.gov.au/our-responsibilities/review-of-australias-welfare-system (viewed 22 May 2015).