REVIEW OF THE OCCUPATIONAL HEALTH AND SAFETY (COMMONWEALTH EMPLOYMENT) ACT 1991

SUBMISSION OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

to the

DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

May 2006

Table of Contents

Introduction. 1

Overview of HREOC’s Submission. 2

Equality of opportunity in employment for people with disability. 6

Employees with disability. 7

Disclosure of disability. 9

Overview of occupational health and safety concerns and employees with disability. 10

Occupational health and safety, disability discrimination and industrial relations laws. 12

Review of the Act: PART 1 - PRELIMINARY.. 18

Review of the Act: PART 2 – OCCUPATIONAL HEALTH AND SAFETY.. 23

Review of the Act: PART 3 – WORKPLACE ARRANGEMENTS. 24

Review of the Act: PART 4 – ADVICE, INVESTIGATIONS AND INQUIRIES. 24

Review of the Act: PART 5 – MISCELLANEOUS. 25

Conclusion. 25

Introduction

1.          The Human Rights and Equal Opportunity Commission (HREOC) welcomes the opportunity to make this submission to the Department of Employment and Workplace Relations on the review of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the Act).

2.          HREOC is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). It is Australia’s national human rights institution.

3.          Section 31 of the HREOC Act sets out HREOC’s functions relating to equal opportunity in employment in Australia. Some of the functions of HREOC include:

·         examining laws regarding equality of opportunity in employment;

·         inquiring into acts and practices related to equal opportunity in employment;

·         promoting understanding and public discussion of equality of opportunity and treatment in employment situations; and

·         making recommendations to the Commonwealth Parliament regarding how to improve Australia’s performance in these areas.[1]

4.          One of the main purposes of HREOC is to monitor Australia’s compliance with human rights norms, including the International Labour Organisation Convention concerning Discrimination in respect of Employment and Occupation (ILO 111) and the UN Declaration on the Rights of Disabled Persons. Both these international instruments highlight the importance of ensuring equality of opportunity in employment for people with disability.

5.          HREOC also administers the Commonwealth Disability Discrimination Act 1992 (the DDA).[2] The purpose of the DDA is to ensure equality of opportunity and protect against unlawful discrimination of people with disability in the workplace, amongst other things.

6.          Section 67 (1) of the DDA sets out HREOC’s functions. Some of the functions of HREOC include:

·         to promote an understanding and acceptance of, and compliance with, the DDA;

·         to examine enactments for the purpose of ascertaining whether the enactments are inconsistent with or contrary to the objects of the DDA;

·         making recommendations to the Commonwealth Parliament as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to discrimination on the ground of disability; and

·         to do anything incidental or conducive to the performance of any of the preceding functions.

7.          This submission focuses on equality of opportunity in employment for people with disability.

Overview of HREOC’s Submission

8.          HREOC welcomes the opportunity to outline areas where amendments need to be made to improve the Act’s effectiveness and to better meet the objects of the Act:[3]

                     (a)  to secure the health, safety and welfare at work of employees of the Commonwealth and of Commonwealth authorities; and

                     (b)  to protect persons at or near workplaces from risks to health and safety arising out of the activities of such employees at work; and

                     (c)  to ensure that expert advice is available on occupational health and safety matters affecting employers, employees and contractors; and

                     (d)  to promote an occupational environment for such employees at work that is adapted to their needs relating to health and safety; and

                     (e)  to foster a co‑operative consultative relationship between employers and employees on the health, safety and welfare of such employees at work; and

                      (f)  to encourage and assist employers, employees and other persons on whom obligations are imposed under the Act to observe those obligations; and

                     (g)  to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.

9.          In 2005 HREOC conducted a National Inquiry into Employment and Disability (The Inquiry). The Inquiry found that one of the main impediments to the employment of people with disability lies in employer concerns about increased exposure to legal and financial risks related to occupational health and safety, disability discrimination and unfair dismissal laws.

10.      This submission focuses mainly on the findings and recommendations of the Inquiry.[4]

11.      The primary concern appears to be the belief that there are higher health and safety risks when there are people with disability in the workplace, and therefore greater exposure to workers compensation claims. While the Inquiry did not receive any clear evidence that there is, in reality, a generally higher safety risk, the perception appears to be strong enough to have a significant impact on hiring and termination decisions by employers.

12.      The Inquiry identified the following concerns:

·         prevailing assumptions that people with disability are a higher safety risk than others, despite the absence of proof

·         as a result of the assumptions about an increased safety risk, employers have concerns about increased insurance premiums

·         workers compensation authorities provide insufficient information

·         there are difficulties in accessing information and advice as to how to manage safety risks for anyone, including people with disability

·         there are difficulties in identifying any additional risks created (or not) by a person’s disability

·         there are concerns about the amount of time and cost involved in making adjustments for a person with disability to do a job properly and manage the risk appropriately

·         there is a perception that there is a non-delegable duty of care and that the duty is higher regarding employees with disability

·         there is a perception that risk must be completely eliminated for people with disability – ‘zero tolerance’ approach – rather than ‘reasonable and practical measures’

·         there are difficulties in getting someone to say that the appropriate measures have been taken to provide a safe working environment

·         there are concerns that even if it were possible to get ‘sign-off’ on a safe environment, it may not provide legal protection

·         there are concerns about the serious financial and personal liability consequences for any problems that arise

·         the failure of an employee to disclose a disability can mean that appropriate steps are not taken to comply with the Act and liability is incurred

·         there is confusion about the interaction between occupational health and safety legislation and disability discrimination legislation.

13.      HREOC is particularly concerned that employers are deciding not to hire people with disability, and terminating contracts and agreements, as they are unable to obtain the necessary information and assistance to ensure compliance with obligations under the Act.

14.      HREOC is also concerned that as a result of employers not hiring people with disability on the basis of fears related to the Act, many people with disability are not disclosing their disability. In this situation, the employer is unable to make the necessary adjustments to provide employees with a safe workplace or safe systems of work.

15.      HREOC is also concerned that due to recent reforms to move more people with disability off welfare into employment, resulting in an increased number of people with disability working part-time (15-29 hours per week) and on a casual basis, and the introduction of the new WorkChoices system (Workplace Relations Amendment (WorkChoices) Act 2005 and associated regulations), more people with disability may be exposed to discriminatory decisions not to hire on the basis of fears related to the Act, may not be in a position to develop arrangements to meet their particular needs, or otherwise not be provided with the necessary adjustments required for a safe workplace or safe system of work due to difficulties in obtaining the necessary information and support.

16.      HREOC makes the following recommendations to address these concerns and to ensure equality of employment opportunity and safe systems of work for people with disability.

17.      Recommendation 1. HREOC recommends that the Safety, Rehabilitation and Compensation Commission formulate policies and strategies to support employees with disability to disclose their disability, in a way that does not result in discrimination or adverse penalty, but fosters compliance with the Act in order to ensure safe work practices and workplaces.

18.      Recommendation 2. HREOC recommends a government-sponsored program that ensures the collection, analysis and dissemination of reliable data about the true impact of occupational health and safety laws on employers of people with disability. The data should be collected from, but not be limited to, Comcare.

19.      Recommendation 3. HREOC recommends that the provision of government-sponsored personal and workplace assessments, which also recommend risk management strategies.

20.      Recommendation 4. HREOC recommends that to in order to secure equality of employment opportunity for people with disability, the Act be amended to clarify the competing obligations under the Act and the DDA for employers in respect of employees with disability. The manner and form of any amendments and the advice and guidance to be given to employers to clarify the competing obligations under both Acts should be determined in consultation with an expert working group (see Recommendation 5).

21.      Recommendation 5. HREOC recommends that an expert working group should be created and funded by the Commonwealth government to assist in the development of solutions to address the occupational health and safety concerns of employers in respect of employees, or potential employees, with disability to enable employers to meet their obligations under the Act and not discriminate against people with disability. The expert working group should comprise, but not be limited to, agencies involved in the administration of both the Act and the DDA and people with expertise in this area (see for example, the composition of HREOC’s expert working group on occupational health and safety, disability discrimination and unfair dismissal laws, described in Paragraph 63).

22.      Recommendation 6. Due to the continuing high levels of discrimination and concerns surrounding the safety of employees with disability in the workplace, HREOC recommends a multifaceted awareness raising campaign through ‘myth buster’ fact sheets, ‘how to’ information sheets and business-to-business promotion.

23.      Recommendation 7. HREOC recommends capacity building for employment service providers to better deal with the occupational health and safety concerns of employers seeking to hire people with disability.

24.      Recommendation 8. HREOC recommends the Act be amended to provide a greater focus on the provision of information, training and advice, on an as-needed-basis, that responds to employer concerns about what they need to do to meet occupational health and safety requirements for employees with disability and how to go about doing it.

25.      Recommendation 9. HREOC recommends the development of Codes of Practice and Standards on safe methods of working, where disability issues are relevant, including reasonable adjustment. The Codes of Practice should indicate the level of compliance which is sufficient to meet the requirements of the Act and allow a mechanism of sign-off.

26.      Recommendation 10. In order to ensure equality of employment opportunity for people with disability across Australia, HREOC recommends that the Commonwealth government engage State and Territory workers compensation authorities in the provision of minimum parallel mechanisms, identification and elimination of additional barriers, dissemination of information and development of disability employment strategies.

27.      Recommendation 11. HREOC recommends that the Act be amended to clarify the obligations of employers in respect of employees, or potential employees, with disability. The manner and form of any amendments to the Act and the type of guidance to be provided to employers to assist them in fulfilling their obligations under the Act should be determined in consultation with an expert working group (see Recommendation 5).

28.      Recommendation 12. HREOC recommends that guidance material issued by Comcare should be clear and explicit about the obligations of employers in relation to employees with disability.

29.      Recommendation 13. HREOC recommends that more guidance needs to be provided to employers and to the courts as to what is “reasonably practicable” for employers to do to fulfil their duty of care and what matters should be taken into account in determining what is reasonably practical. The manner and form of any amendments to the Act and the type of guidance to be provided to employers on what is “reasonably practicable” should be determined in consultation with an expert working group (see Recommendation 5).

30.      Recommendation 14. HREOC recommends that more guidance needs to be provided to employers on what they must do to address all risks to health and safety at their workplace, including addressing new and emerging issues, for employers to fulfil their obligations under the Act. The manner and form of any amendments to the Act and the type of guidance to be provided to employers on what they must do to address all risks to health and safety at their workplace should be determined in consultation with an expert working group (see Recommendation 5).

31.      Recommendation 15. In order to ensure greater compliance with the Act, HREOC recommends that employers should have access to government-sponsored advisers and assessors, whether through the Safety Rehabilitation and Compensation Commission, Comcare or other agency, when they are in doubt of their obligations under the Act or whether adjustments need to be made to ensure the safety of employees with disability and others in the workplace.

32.      Recommendation 16. Due to the difficulties experienced by employers in their endeavours to seek out information and advice when genuinely trying to meet their obligations under the Act when recruiting or revising conditions of employment for employees with disability, HREOC recommends that resources be allocated to ensure that access to the advice of experts is readily available and free of charge for employers who seek to comply with Act and not discriminate against people with disability.

33.      Recommendation 17. HREOC recommends deletion of Section 80 of the Act.

Equality of opportunity in employment for people with disability

34.      The right to work is a fundamental human right and should be enjoyed by all people without discrimination.[5]

35.      As a party to the Convention concerning Discrimination in respect of Employment and Occupation (ILO 111; the Convention), Australia is bound under international law to ensure the protection and promotion of the rights in this Convention.

36.      This Convention was ratified by Australia in 1973. It requires States Parties to eliminate employment-related discrimination on the grounds of: race; colour; sex; religion; political opinion; national extraction; and social origin.[6]

37.      The Convention permits a State Party to add grounds unilaterally for its own domestic purposes. In 1989 Australia added, amongst others, the following grounds: impairment; mental, intellectual or psychiatric disability; and physical disability.[7]

38.      Article 2 of the Convention states that:

Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

39.      Article 3 of the Convention states:

Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice:

(a) To seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy;

(b) To enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy;

(c) To repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy;

(d) To pursue the policy in respect of employment under the direct control of a national authority;

(e) To ensure observance of the policy in activities of vocational guidance, vocational training and placement services under the direction of a national authority;

(f) To indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action.

40.      Article 7 of the UN Declaration on the Rights of Disabled Persons states:

Disabled persons have the right to economic and social security and to a decent level of living. They have the right, according to their capabilities, to secure and retain employment or to engage in a useful, productive and remunerative occupation and to join trade unions.

Employees with disability

41.      There is always some uncertainty about who makes up the group called ‘people with disability’. In particular, it seems that many assume that this group primarily comprises people with severe mobility, sensory or intellectual disabilities. From the employer perspective, there can be the corresponding assumption that all ‘people with disability’ require substantial workplace adjustments, are a higher safety risk and have high ongoing needs.

42.      People with disability represent 16.6% of Australia’s working age population (15-64 years of age).[8] However, they are much less likely to be employed than people without disability. People with disability have a comparatively lower labour force participation rate (53.2% compared to 80.1%) and a higher unemployment rate (8.6% compared to 5%) than those without a disability.[9]

43.      Australian Bureau of Statistics figures indicate that forty per cent of people with disability of working age attribute their disability to an accident, injury, work related or life event. Twenty per cent of people with disability say that their disability was present at birth or due to illness, disease or hereditary factors. Twenty one per cent attribute their disability to ‘just came on or due to old age’. Three percent say their disability is due to allergy, smoking or side-effects of medication or medical procedures. And sixteen per cent attribute their disability to other causes.[10]

44.      Specifically, fourteen percent of people with disability aged between 15 and 64 identified the main cause of their disability to be from working conditions, work or overwork. Twenty one percent of people said their disability arose though sporting, driving and other injuries.

45.      Statistics suggest that there are many people with disability who do not require a great deal of assistance or workplace accommodation. Forty five per cent of people with disability aged between 15 and 64 years of age will only need minor adjustments and supports to participate in the workplace (identified as having a mild or moderate core activity limitation). Twenty two percent of people with disability aged between 15 and 64 years of age may need more significant supports to participate in the workplace (identified as having a severe or profound core activity limitation).[11]

46.      Depending on the disability and the job, it does not necessarily follow that a person with a severe disability will require substantial workplace adjustments. This is not to minimise the need to ensure that the appropriate accommodations and the proper supports are in place, if needed in the circumstances. However, it is important to realise that, more likely than not, those adjustments will be relatively minor.

47.      Further, it is important to clarify that workplace adjustments are not just about creating the appropriate conditions for new employees who have a disability. Rather, those adjustments are more likely to be required in order to retain existing employees. This is because the vast majority of people with disability of working age (15-64 years old) are likely to acquire a disability at a time when they already have a job.

48.      With an ageing population, the current skills shortage and reforms to move people off welfare and into the workplace, measures to remove discrimination and increase the recruitment and retention of people with disability in the open workplace, and concomitant measures to ensure safe systems of work and safe workplaces, are critical.

Disclosure of disability

49.      For employers, the issue of disclosure is critical in order to provide employees with any necessary adjustments and to fulfil occupational health and safety obligations. However, for people with disability, disclosure of their disability often means they will be not be selected at the recruitment stage, or if they have a job, they run the risk of losing it:

For people with a disability whether to disclose or not to disclose it is a bit like being between a rock and a hard place – damned if you do and damned if you don’t. The benefits may be that the employer can provide simple equipment or re-organise working arrangement to improve job efficiency. The disadvantage may be that other employees and/or managers will focus on the disability rather than a person’s skills and ability to do the job, and may discriminate against that person.[12]

50.      Submissions to the Inquiry suggest that the question of whether to disclose a disability during the job seeking and application process may be confronting and can have a very real impact on the chances of finding a job.[13] DEAC legal Services told the Inquiry that disclosure is particularly difficult for people with mental illness and can have an almost immediate and catastrophic effect on their prospect for future employment and continuing employment.[14] beyondblue argues that:

Disclosure of conditions to employers often results in an inability to obtain further work, or if in current employment, people being undermined, denied promotional opportunities, and in some cases resulting in demotion or job loss.[15]

51.      People with HIV/AIDS face similar issues. The National Association of People Living with HIV/AIDS reported that:

43.3% of people living with HIV/AIDS currently in work [have] not disclosed their HIV status to anyone at their workplace with the most common difficulties for those who do want to maintain confidentiality at work being gossip and explaining absences from work, for doctors appointments and other treatment related matters … there are cases known to NAPWA where people have lost their jobs because of their HIV status.[16]

52.      The question of whether or not to disclose is often precipitated by the need for people with disability to explain significant gaps in their work history.[17]

53.      The Australian Chamber of Commerce and Industry also stated to the Inquiry that non-disclosure is an additional area of risk about which employers may be concerned. The concerns arise from the:

complications created where an employee has not fully disclosed their known condition to the employer, and the employer has not had the opportunity to make an appropriate analysis of risk and apply effective workplace adjustment.

Overview of occupational health and safety concerns and employees with disability

54.      Submissions to the Inquiry suggest that employers are concerned that hiring a person with disability may expose their business to increased risks of litigation and higher insurance premiums. In particular there appears to be a fear that the business will be more vulnerable to unfair dismissal claims, workers compensation claims and discrimination claims.

55.      There was no clarity in the submissions as to how the risks are, in reality, heightened by hiring people with disability. Indeed several submissions suggest that they are not real risks at all; rather they are a manifestation of a general fear of the unknown or a misapprehension of the facts.[18] For example, there is no evidence that workers with disability have higher workplace accident rates.[19] And there is research suggesting that employees with disability cost marginally less in terms of safety and insurance costs.[20]

56.      Regarding occupational health and safety, the Australian Industry Group provides some statistics suggesting that the risks are not as high as some might believe them to be:

While care needs to be taken with aggregate data in view of the wide occupational variations in claims, some preliminary research suggests that people with disabilities may be statistically less likely to be involved in workplace accidents[21]. One study found that 98% of employees with a disability have a better or similar accident record compare to their co-workers without a disability.  These campaigns should also engage state workers compensation authorities and promote greater understanding of the relationship between disability and workers compensation claims. Further preliminary research suggests that only 4% of employees with a disability claimed for workers compensation, compared with 14.7% claimed by employees without disabilities.[22]

57.      The Disability Council of NSW suggests that:

Employers must be firmly of the belief that people with disability are not significantly dissimilar to their other employees. They need to understand that in an environment of risk aversion, knowing the needs of potential employees before employing them is an advantage and not a disadvantage. The concern to avoid unfair dismissal, OH&S and discrimination claims applies to all employees.[23]

58.      There appears to be a great deal of confusion about how these workplace laws interact and apply to the employers of people with disability.[24] There is also concern about the impact of these litigation risks on insurance premiums.[25]

59.      Further, there seems to be uncertainty about the obligations under disability legislation. For example, it appears that employers may not understand that while the DDA protects against unlawful discrimination, it does not require an employer to hire somebody who cannot carry out the inherent requirements of the job, or who would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.[26]

60.      Nevertheless, while some of the risks may not be real, there do seem to be at least some genuine hurdles in the context of unfair dismissal laws, workers compensation laws, occupational health and safety regulations, and disability discrimination laws.[27]

61.      At the very least, there should be further investigation into the real impact of these laws on employers of people with disability.

62.      Vision Australia and Blind Citizens Australia note that visually impaired and blind people are often retrenched due to perceived occupational health and safety concerns. They warn against any strategy that may perpetuate rather than eliminate the myths about occupational health and safety risks.[28]

Occupational health and safety, disability discrimination and industrial relations laws

63.      During the work of the Inquiry, a working group was formed to clarify the real financial and legal risks related to occupational health and safety, disability discrimination and unfair dismissal laws associated with employing people with disability and to identify possible strategies for addressing this barrier to employment of people with disability. The group expanded to include a barrister and representatives from the following 21 organisations:

·         ACROD

·         AMP

·         Australian Chamber of Commerce and Industry

·         Australian Council of Trade Unions

·         Australian Industry Group

·         Centacare

·         Department of Education and Training NSW

·         Department of Employment and Workplace Relations

·         Disability Council of NSW

·         Disability Employment Action Centre

·         Diversity Council of Australia

·         Diversity@Work

·         Employers Making a Difference

·         IBM Australia

·         National Employment Services Association

·         NSW Disability Discrimination Legal Centre

·         Office of the Australian Safety and Compensation Council

·         People With Disability Australia

·         Regional Disability Liaison Officer Western Sydney

·         TAFE NSW

·         Workcover South Australia.

64.      The members of the working group confirmed the premise that the actual or perceived application of occupational health and safety, disability discrimination and industrial relations laws to people with disability operates as a serious impediment to an employer’s willingness to hire.

65.      The group had difficulty in distinguishing between the real and perceived risks. This is most likely because, in practice, the impact of any perceived risks appears to be as great as the impact of any real risks. Further, the difference between perceived and real risks will vary depending on the specific disability, job description and workplace.

66.      The group identified the following concerns regarding occupational health and safety regulations:

·         prevailing assumptions that people with disability are a higher safety risk than others, despite the absence of proof

·         as a result of the assumptions about an increased safety risk, employers have concerns about increased insurance premiums

·         workers compensation authorities provide insufficient information

·         there are difficulties in accessing information and advice as to how to manage safety risks for anyone, including people with disability

·         there are difficulties in identifying any additional risks created (or not) by a person’s disability

·         there are concerns about the amount of time and cost involved in making adjustments for a person with disability to do a job properly and manage the risk appropriately

·         there is a perception that there is a non-delegable duty of care and that the duty is higher regarding employees with disability

·         there is a perception that risk must be completely eliminated for people with disability – ‘zero tolerance’ approach – rather than ‘reasonable and practical measures’

·         there are difficulties in getting someone to say that the appropriate measures have been taken to provide a safe working environment

·         there are concerns that even if it were possible to get ‘sign-off’ on a safe environment, it may not provide legal protection

·         there are concerns about the serious financial and personal liability consequences for any problems that arise

·         the failure of an employee to disclose a disability can mean that appropriate steps are not taken to comply with the Act and liability is incurred

·         there is confusion about the interaction between occupational health and safety legislation and disability discrimination legislation.

67.      The group identified the following concerns regarding disability discrimination laws:

·         confusion about the meaning of discrimination and a general lack of understanding about what discrimination laws require

·         confusion about whether and when an employer can ask a potential employee whether he or she has a disability

·         concern about the cost of making reasonable adjustments (even though the obligation may be no different regarding other employees)

·         concern about whether measures to protect employees with disability may be regarded as unfair by other workers

·         concern about whether adjustments made for employees with disability may deprive them of opportunities

·         concern about the time involved in addressing any discrimination claims - be they justified or not

·         little incentive to comply with legislation because consequences are light.

68.      The group identified the following concerns regarding industrial relations laws:

·         concern about the increased prospect of an unlawful dismissal claim on the basis of an employee’s disability

·         concern about the time involved in addressing any unfair dismissal claims

·         concern about differing treatment in unfair dismissal claims when they involve people with disability

·         confusion about whether a failure to disclose a disability permits an employer to dismiss on the basis of false and misleading information

·         concern about informed consent for employees with disability negotiating their own agreements

·         concern about a possible increase in internal disputes due to friction involving employees with disability or differing treatment of people with disability.

69.      Regarding industrial relations risks, the Australian Chamber of Commerce and Industry added that there is also concern about differing treatment in unfair dismissal claims by people with disability.

70.      Regarding unfair dismissal, Australians for Disability and Diversity Employment referred the Inquiry to laws in the United Kingdom where the onus is on the employer to refute a breach of unfair dismissal in the case of an employee with disability.[29]

71.      The group identified the following concerns regarding the intersection of laws (occupational health and safety, disability discriminations, industrial relations):

·         concern about the complexity of interaction between laws

·         confusion about the hierarchy between the laws in the event of conflict

·         additional confusion caused by privacy legislation (for example, whether an employment services provider can disclose a disability to employers).

72.      The Australian Chamber of Commerce and Industry also stated that employers may be concerned about the extent of ‘reasonable accommodations’ under DDA and occupational health and safety legislation.

73.      Section 5 of the DDA states:

             (1)  For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

             (2)  For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

74.      Whilst the DDA refers to the provision of different accommodation and services for people with disability, the Act has been criticised for failing to impose an obligation on employers to do so:[30]

Whilst as a “practical matter [an employer] may have to take steps to provide … accommodation to escape a finding of discrimination”[31] in the particular circumstances of the case, s 5(2) of the DDA does not impose “an obligation” to provide “different accommodation or services” that are required by the disabled employee.[32]

75.      The DDA has been further criticised for failing to define or give guidance as to the types of accommodations to be made or provided for and on whose criterion of assessment “reasonableness” is to be determined:[33]

Whilst the principle of reasonable accommodation “should be regarded as a central principle of disability discrimination law”,[34] neither the ADA nor the DDA provides any guidance as to the kinds of adjustments required to be made, nor on whose assessment the criterion of “reasonableness” is to be determined. Each case turns on its own facts and must be assessed on its own merits. Arguably any adjustment which threatened the safety of the disabled employee or others in the workplace would not be reasonable.[35]

76.      The difficulty faced by employers of balancing the competing responsibilities created by occupational health and safety and disability discrimination legislation has been discussed by many academics and legal practitioners:[36]

The purpose of disability discrimination laws is wherever possible, to include people, regardless of their disability in key areas of society, such as employment, in so doing preserving not only their rights but their dignity. Whilst such legislation should not be drafted or interpreted so as to defeat these objectives, equally it should not place employers at potential risk of breaching either their antidiscrimination or their occupational health and safety obligations. This is not to suggest that employers be given complete autonomy to arbitrarily discriminate on the pretext of workplace health and safety grounds, but that clarification be provided as to where the balance between these competing obligations might appropriately be drawn.[37]

77.      To date, this onerous task has been left to employers and the judiciary. As Godfrey, and other academics, have concluded:

The interrelationship between the two competing obligations has largely been left to the judiciary, which as we have seen has at times led to some contentious results.[38]

78.      For example in NSW, it seems that obligations created by occupational health and safety legislation have priority:

the absolute obligations imposed upon the [employer] by [s 8] of the [OHS] Act, require that safety of employees be preferred … [and that] [e]mployment on [any other] basis is not permitted by the Act.[39]

79.      In a recent examination by one academic of the competing legal obligations faced by employers with regards to the requirement to make adequate arrangements for employees or potential employees with disability and the defences and exemptions available to employers under discrimination and occupational health and safety legislation, indicates that legislation and regulations need to be reviewed:

With the distinct possibility that workplace polices or programs may place more emphasis on compliance with one obligation, to the detriment of the other, a careful and thorough consideration of all issues is required, involving a comprehensive factual and legal analysis of the particular circumstances.[40]

80.      This is not to say that accommodations must be made for all employees with disability who apply for a job and who are unable to carry out the inherent requirements of the job or where the accommodations required would impose an unjustifiable hardship on the employer. In this situation, the recruitment stage, and the termination stage, an employer will not be found to have unlawfully discriminated against an employee on the grounds of disability.[41]

81.      There is no requirement for an employer to make reasonable accommodations during the term of employment. This situation may arise, for example, if an employee with disability is considering training, transfer or a promotion or an employee acquires a disability:

Both the ADA [Anti-Discrimination Act 1977 (NSW)] and DDA have been heavily criticised for limiting the need for an employer to make reasonable accommodation for an employee’s disability to circumstances in which they are making decisions about whether to recruit or terminate an employee. Neither Act requires an employer to make such adjustments when making decisions about other matters, such as training, transfer or promotion.[42] This may actually encourage discrimination at the recruitment stage, to circumvent the possibility of having to provide services or facilities at a later time, when the defence of unjustifiable hardship is unavailable.[43] There appears to be no logical reason for this anomaly, which is clearly at odds with the objects and policies of the anti-discrimination legislation and hence clearly requires legislative amendment.[44]

82.      Some employers have relied on the exemption outlined in Section 47 (2) of the DDA (that is, their requirement to comply with occupational health and safety obligations arising under the Act) to render their discrimination decision lawful. Section 47(2) states:

This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.

83.      The High Court has adopted a very narrow view of this exemption and indicated that in order for the exemption to apply, the prescribed law must be “mandatory and specific”.[45]

84.      The Act is not currently listed under the DDA for the purposes of Section 47(2). However, it is unclear that even if the Act was prescribed under the DDA, whether the obligations created under the Act could described as ‘mandatory and specific’ or whether they are more general obligations.

85.      Many employers have relied upon the inherent requirements and unjustifiable hardship defences contained in Section 15(4) of the DDA. Section 15 states:

(4)  Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

                     (a)  would be unable to carry out the inherent requirements of the particular employment; or

                     (b)  would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.

86.      In a review of cases in NSW and Victoria where employers have relied upon the above exemptions, claiming that discrimination was necessary to ensure the occupational health and safety of the employee with disability, Godfrey concluded that the processes can be complicated, lengthy and costly:

These cases demonstrate that it is important for employers not to make assumptions about the capabilities of their employees and give due regard to medical opinion. They also demonstrate the fine balancing act required to be undertaken by employers in order to comply with both their occupational health and safety and anti-discrimination obligations. In determining whether the discriminatory conduct is objectively necessary to comply with occupational health and safety requirements, the employer must weigh up the relevant considerations, namely: the extent of the employee’s disability; the nature of the duties and responsibilities the employee is required to perform; the extent to which the employee can perform those duties; the extent to which the employer can reasonably accommodate the employee’s disability and the extent to which the health and safety of the employee or other persons is put at risk by allowing the disabled employee to continue in employment … [i]f the employer is able to accommodate the employee by making reasonable adjustments to the workplace then the discrimination will not be necessary. However, as we have seen in our discussion above, under the heading “unjustifiable hardship”, this may not be without some expense or inconvenience to the employer.[46]

Review of the Act: PART 1 - PRELIMINARY

87.      Given the shortness of time to available to review the Act, HREOC will only provide brief comments with regard to functions conferred to the Safety, Rehabilitation and Compensation Commission[47] and Comcare[48] as outlined in Part 1 of the Act.

Supporting disclosure to ensure safe work practices and improve safety in the workplace

88.      As indicated above (Paragraphs 49-53), the issue of disclosure requires urgent attention in order to ensure safe work practices and improve safety in the workplace.

89.      HREOC cautions against the implementation of any changes that will result in further discrimination or negative repercussions for people with disability. The aims of any initiative should be to support employees with disability to disclose and assist employers to make the necessary workplace adjustments where required.

90.      The Disability Discrimination Legal Centre NSW suggested to the Inquiry that:

Guidelines need to be developed and instituted on the issue of whether and, if so, when, a person with a disability should disclose that they have a disability and what rights and protections that person has and what obligations and limitations bind the employer in that regard.[49]

91.      Two academics, Waghorn and Lloyd, suggested that vocational professionals may also be able to assist with the process of disclosure through strategic disclosure to employers and other third parties:

The use of explicit strategies to counter workplace stigma, and structured counselling to optimise disclosure strategies, are also expected to enhance outcomes in psychiatric vocational rehabilitation by improving job commencement and job retention. Strategies are needed throughout vocational rehabilitation to counter past and present stigma and strategically manage disclosure of personal mental health information in the workplace.[50]

92.      HREOC would like to draw the Department’s attention to a resource developed by Anna Mungovan and Fran Quigley, Regional Disability Liaison Officers, regarding disclosure. The resource provides information about disclosure, clarifies legal obligations and rights and suggests practical steps to take in relation to disclosure for both employers and potential employees.[51]

93.      Recommendation 1. HREOC recommends that the Safety, Rehabilitation and Compensation Commission formulate policies and strategies to support employees with disability to disclose their disability, in a way that does not result in discrimination or adverse penalty, but fosters compliance with the Act in order to ensure safe work practices and workplaces.

Collection of data to dispel myths

94.      The Inquiry recommended research to clarify the real financial and legal risks associated with employing people with disability. This included the systematic collection and analysis of large quantities of information about people with disability in the workplace in general and any workers compensation claims, with a view to informing the debate about occupational health and safety risks.

95.      The Inquiry notes that, according to Sections 12(2)[52] and 12A(2)[53] of the Act, the Minister may give directions to Safety, Rehabilitation and Compensation Commission and Comcare. The Inquiry also notes that Subsection 12(1)(c) of the Act confers the follow function on the Commission:

to collect, interpret and report information relating to occupational health and safety in Commonwealth employment

96.      Recommendation 2. HREOC recommends a government-sponsored program that ensures the collection, analysis and dissemination of reliable data about the true impact of occupational health and safety laws on employers of people with disability. The data should be collected from, but not be limited to, Comcare.

Provision of information and access to qualified assessors

97.      It appears that one of the main problems faced by employers is uncertainty about the appropriate steps to take in order to address personal and workplace safety risks, whether the employee has a disability or not.

98.      Some members of the working group suggested that this uncertainty might be addressed by providing easy access to government-funded experts who can assist employers to identify what needs to be done to create a safe workplace.

99.      Other members went a step further to suggest that the advice provided by such experts might be part of a ‘certification’ or ‘compliance’ model. While the idea behind this type of model is to ensure that the assessment carries the authority that employers are looking for, it was acknowledged that there may need to be some investigation regarding the legal barriers to ‘certification’.

100.  The Australian Industry Group stresses that the best approach is to focus on education and awareness for employers rather than regulation:

The interaction of OHS, disability discrimination and industrial relations requirements does indeed pose a barrier to the employment of people with a disability, whether this is based on perceived risks, or actual risks. Schemes like the availability of Government-funded consultants offering assistance to employers and employees with disability, is a sensible suggestion to encourage increased engagement of people with disability.[54]

101.  Other participants made suggestions about who might be best placed to conduct the assessments, including:

·         a party independent of government (to reduce employer sensitivity to compliance and regulation issues)

·         employment services (to reduce the number of agencies involved in the employment process)

·         government-funded consultants.

102.  The Regional Disability Liaison Officer, Western Sydney, went into greater detail and suggested that the assessments should be conducted by an accredited service with the capacity to assess a workplace, identify strategies and implement any modifications necessary to ensure a safe work environment. Such a service must be able to demonstrate occupational health and safety awareness for the employee, employer and the organisation as a whole, irrespective of whether the employee is unskilled or highly skilled. The services could be an employment service, rehabilitation service or a newly created specialised service.

103.  Several members of the working group expressed some concern that providing government-funded experts only for employees with disability may perpetuate the perception that they are an increased safety risk, despite the absence of evidence to this effect.

104.  During the Inquiry, DEWR reported that it was considering the incorporation of a government-sponsored worksite assessment scheme for inclusion in its one-stop-information-shop. DEWR described the possible worksite scheme as follows:

Worksites Assessment

It is envisaged that the worksite assessment would be organised through the Australian online information and advice service.  This would complement the streamlining of the Workplace Modifications Scheme through the site from July 2006.

Potential Users

It is envisaged that worksite assessments would be available for new and existing employees with disabilities.

Existing employees may include people who have returned to work after an accident or injury, or existing employees whose needs or job requirements have changed.

Potential Services Offered

The worksite assessment could provide a mechanism for identifying strategies to manage OHS risks for the employer.  The assessment could include the employee’s work fit and the need for workplace or job-task modification.  It is envisaged that this assessment could form part of the workplace modifications worksite assessment.

Benefits of Worksite Assessments

Worksite assessments would assist employers take appropriate steps to manage OHS risks when employing people with disabilities.

105.  The Regional Disability Liaison Officer, Western Sydney, commented that the ‘Potential Users’ under such a scheme should also include:

·         existing employees whose job may not have changed, but who disclose their disability at a later point in time

·         students with disabilities and post secondary education providers who may face occupational health and safety concerns in the context of field trips and work placements

·         apprentices and trainees with disability and their employers.

106.  The Inquiry also noted additional concerns for employers:

·         some employers may be seeking some certainty as to the legal effect of carrying out the suggestions made by a personal and workplace assessor (for example, through certification)

·         it may be useful to provide lists of agencies that can provide personal and workplace assessments so that employers can seek assistance independently of government

·         guidance as to the issues that will be addressed by the personal and workplace assessment (for example, checklists that may be used by assessors).

107.  Recommendation 3. HREOC recommends that the provision of government-sponsored personal and workplace assessments, which also recommend risk management strategies.

Clarification of competing obligations under the Act and the Disability Discrimination Act

108.  HREOC is concerned that employers are provided with very little guidance as to how to fulfil and manage the competing obligations under occupational health and safety and disability discrimination legislation (see Paragraphs 63-86 above).

109.  An analysis of the competing legal obligations and responsibilities led one academic to conclude:

Unfortunately, neither the ADA [Anti-Discrimination Act 1977 (NSW)] nor the DDA indicate in any detail how the obligations under these Acts interact with responsibilities under occupational health and safety legislation. Clearly, disabled employees are entitled to equivalent protection to other employees under such laws. This includes amongst other things, reasonable access to appropriate information, training, consultation and that reasonable adjustment be made to equipment, facilities or procedures to secure the health and safety of all employees, including the disabled. In this way, concurrent and analogous obligations arise under anti-discrimination and occupational health and safety legislation.[55]

110.  Recommendation 4. HREOC recommends that to in order to secure equality of employment opportunity for people with disability, the Act be amended to clarify the competing obligations under the Act and the DDA for employers in respect of employees with disability. The manner and form of any amendments and the advice and guidance to be given to employers to clarify the competing obligations under both Acts should be determined in consultation with an expert working group (see Recommendation 5 outlined in Paragraph 111 below).

111.  Recommendation 5. HREOC recommends that an expert working group should be created and funded by the Commonwealth government to assist in the development of solutions to address the occupational health and safety concerns of employers in respect of employees, or potential employees, with disability to enable employers to meet their obligations under the Act and not discriminate against people with disability. The expert working group should comprise, but not be limited to, agencies involved in the administration of both the Act and the DDA and people with expertise in this area (see for example, the composition of HREOC’s expert working group on occupational health and safety, disability discrimination and unfair dismissal laws, described in Paragraph 63).

Education campaign

112.  The Inquiry working group emphasised that it is insufficient to just produce information, there must be a way to ensure understanding. Thus, any new literature should be accompanied by a long-term multifaceted approach to education – including media and business champions. Information must be easily accessible and broadly disseminated. Positive experiences of employers should be widely promoted.

113.  The education campaign should be comprehensive, clear, accurate and energetic. At the same time the campaign should be cognisant of the possibility that it might inadvertently foster unhelpful stereotypes.

114.  Recommendation 6. Due to the continuing high levels of discrimination and concerns surrounding the safety of employees with disability in the workplace, HREOC recommends a multifaceted awareness raising campaign through ‘myth buster’ fact sheets, ‘how to’ information sheets and business-to-business promotion.

Capacity building for employment service providers

115.  The Inquiry working group noted that employment service providers are often the gateway to the workplace for people with disability, and a major source of information for both employees and employers.

116.  Education and training needs to be provided to employment service providers to improve understanding of occupational health and safety risks, obligations and management strategies. The group stressed that the goal would be ‘capacity building’, not just providing information via kits and websites. 

117.  Recommendation 7. HREOC recommends capacity building for employment service providers to better deal with the occupational health and safety concerns of employers seeking to hire people with disability.

Other general recommendations

118.  Recommendation 8. HREOC recommends the Act be amended to provide a greater focus on the provision of information, training and advice, on an as-needed-basis, that responds to employer concerns about what they need to do to meet occupational health and safety requirements for employees with disability and how to go about doing it.

119.  Recommendation 9. HREOC recommends the development of Codes of Practice and Standards on safe methods of working, where disability issues are relevant, including reasonable adjustment. The Codes of Practice should indicate the level of compliance which is sufficient to meet the requirements of the Act and allow a mechanism of sign-off.  

120.  Recommendation 10. In order to ensure equality of employment opportunity for people with disability across Australia, HREOC recommends that the Commonwealth government engage State and Territory workers compensation authorities in the provision of minimum parallel mechanisms, identification and elimination of additional barriers, dissemination of information and development of disability employment strategies.

Review of the Act: PART 2 – OCCUPATIONAL HEALTH AND SAFETY

121.  HREOC notes Section 16(1) of the Act places an overarching obligation on employers to take all reasonably practicable steps to protect the health and safety at work of the employer’s employees. HREOC also notes Sub-sections 16(2)-(5) set out more detailed requirements which the employer must fulfil to comply with the general duty of care, for example to provide and maintain a working environment that is safe for the employees and without risk to their health and to provide employees with the information, instruction, training and supervision that is necessary to enable them to perform their work safely.

122.  HREOC notes that Comcare provides guidance material to assist employers comply with their obligations under the Act.

123.  Recommendation 11. HREOC recommends that the Act be amended to clarify the obligations of employers in respect of employees, or potential employees, with disability. The manner and form of any amendments to the Act and the type of guidance to be provided to employers to assist them in fulfilling their obligations under the Act should be determined in consultation with an expert working group (see Recommendation 5 outlined in Paragraph 111 above).

124.  Recommendation 12. HREOC recommends that guidance material issued by Comcare should be clear and explicit about the obligations of employers in relation to employees with disability.

125.  Recommendation 13. HREOC recommends that more guidance needs to be provided to employers and to the courts as to what is “reasonably practicable” for employers to do to fulfil their duty of care and what matters should be taken into account in determining what is reasonably practical. The manner and form of any amendments to the Act and the type of guidance to be provided to employers on what is “reasonably practicable” should be determined in consultation with an expert working group (see Recommendation 5 outlined in Paragraph 111 above).

126.  Recommendation 14. HREOC recommends that more guidance needs to be provided to employers on what they must do to address all risks to health and safety at their workplace, including addressing new and emerging issues, for employers to fulfil their obligations under the Act. The manner and form of any amendments to the Act and the type of guidance to be provided to employers on what they must do to address all risks to health and safety at their workplace should be determined in consultation with an expert working group (see Recommendation 5 outlined in Paragraph 111 above).

127.  Recommendation 15. In order to ensure greater compliance with the Act, HREOC recommends that employers should have access to government-sponsored advisers and assessors, whether through the Safety Rehabilitation and Compensation Commission, Comcare or other agency, when they are in doubt of their obligations under the Act or whether adjustments need to be made to ensure the safety of employees with disability and others in the workplace.

Review of the Act: PART 3 – WORKPLACE ARRANGEMENTS

128.  Due to time constraints, HREOC makes no comment with regard to issues pertaining to this section of the Act (Health and Safety Representatives, Health and Safety Committees, Emergency Procedures).

Review of the Act: PART 4 – ADVICE, INVESTIGATIONS AND INQUIRIES

129.  Section 39 of the Act states:

Where the Commission has been requested to advise an employer, employee or contractor about an occupational health and safety matter in respect of which the Commission is of the opinion that a person other than a member of the Commission has special knowledge or experience relevant to the request, the Commission may, in the exercise of its function to provide that advice, refer the employer, employee or contractor to that person.

130.  Recommendation 16. Due to the difficulties experienced by employers in their endeavours to seek out information and advice when genuinely trying to meet their obligations under the Act when recruiting or revising conditions of employment for employees with disability, HREOC recommends that resources be allocated to ensure that access to the advice of experts is readily available and free of charge for employers who seek to comply with Act and not discriminate against people with disability.

Review of the Act: PART 5 – MISCELLANEOUS

131.  HREOC notes that Section 80 of the Act provides that a breach of the Act or the regulations by an employee is to be taken to be a breach of the terms and conditions upon which the person is employed and that all employees covered by the Act are now subject to the full range of civil and criminal sanctions.

132.  As discussed above (see Paragraphs 49-53), people with disability have real fears about the negative consequences that may flow from the disclosure of their disability, including not being hired or termination of contracts and agreements, harassment and bullying and other forms of discrimination in the workplace.

133.  HREOC does not support any law or policy that shifts liability to an employee with disability for a failure to disclose, as the failure is most often an attempt to avoid discrimination.

134.  Similarly, HREOC does not support any law or policy that shifts liability to an employee with disability given the current difficulties faced by employers to access advice and support to ensure safe work practices and workplaces and the provision of appropriate adjustments to the employee with disability where necessary.

135.  Recommendation 17. HREOC recommends deletion of Section 80 of the Act.   

Conclusion

136.  In order to ensure that Australia fulfils its human rights obligations under the Convention concerning Discrimination in respect of Employment and Occupation (ILO 111) and the UN Declaration on the Rights of Disabled Persons, and in order to ensure that people with disability wanting to enter and remain in the open workplace are not discriminated against and, where required, are provided with the necessary accommodations to work safely, HREOC recommends that the Act be amended to address concerns outlined in this submission.