Disability and the Law

Recent changes in the employment law landscape for people with disability Elizabeth Meyer NSW Disability Discrimination Legal Centre Inc 5 May 2010

Overview 1. Fair Work Act 2009 (Cth) Referral of NSW industrial relations powers General Protections Provisions National Employment Standards 2. Disability Discrimination Act 1992 (Cth) Failure to make reasonable adjustments Requests for information

Fair Work Act 2009 (Cth) Referral of NSW industrial relations powers As of 1 January 2010 most employees in NSW covered by Commonwealth workplace laws Excludes - NSW public sector employees - Local government “State system” employees: disability discrimination law (Cth & NSW) & unlawful termination (dismissal only) (FWA)

Fair Work Act 2009 (Cth) General Protections Discrimination provisions Section 351 An employer must not take any adverse action against an employee or prospective employee because of the person’s physical or mental disability or carer’s responsibilities

Fair Work Act 2009 (Cth) General Protections Discrimination provisions Section 351(2): doesn’t apply to action that is a.not unlawful under any anti ‑ discrimination law in force in the place where the action is taken b. taken because of the inherent requirements of the particular position concerned

Fair Work Act 2009 (Cth) What is ‘adverse action’? dismissing or refusing to employ someone discriminating against them (including in terms/conditions of employment) demotion/altering position access to training or other benefits dismissing due to temporary absence because of illness/injury

Fair Work Act 2009 (Cth) General protections (discrimination) provisions Section 352 An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Fair Work Act 2009 (Cth) General protections (discrimination) provisions Regulation 3.01 Medical certificate or statutory declaration provided within 24 hours of commencement of absence (or a reasonable amount of time) Exclusions: Absence is for more than 3 months (in total), and Employee is not on paid personal/carer’s leave

Fair Work Act 2009 (Cth) What types of disability are covered? s351 - “physical or mental disability” Is this as broad as “disability” under state or federal laws? imputed, learning & intellectual, disease & illness, aids & devices, assistance animals?

Fair Work Act 2009 (Cth) Advantages: 60 days from dismissal to make application 6 years for non-dismissal applications Response must be lodged within 14 days – r16A Should be faster than DD FWA must conduct conference – s368 Advice on GP Court Application – s370 Courts – parties bear own costs, small claims jurisdiction Shifting burden – s361 Civil remedies provision, 60 penalty units– s539

Fair Work Act 2009 (Cth) Disadvantages: Definition of disability unclear Timeframe may be too fast Investigation- response form – r16A Fee to apply – s367 Non-dismissal – conference must be held only if parties agree – s days to apply to Court after certificate issued – s371(2)

Fair Work Act 2009 (Cth) National employment standards From 1 January 2010 “Safety Net” of 10 minimum terms and conditions of employment Civil remedy provisions for breaches (60 penalty units)

Fair Work Act 2009 (Cth) Flexible work hours A right to request flexible working arrangements to care for a child under school age or a child (under 18) with a disability. Who? Employed for 12 months (casuals on a regular & systemic basis w. continuing expectation)

Fair Work Act 2009 (Cth) What? – Starting late or finishing early – Moving to part-time – Job share or splitting shifts – Working from home How? – Make a request in writing -- Set out what you want and why

Fair Work Act 2009 (Cth) Employers obligations – Must respond within 21 days in writing – Can refuse on “reasonable business grounds” – Reason must be provided in the response – Parties may come to an agreement or compromise – If refusal doesn’t seem “reasonable” employee can use other laws e.g. GP or DD – Penalties do not apply to refusals

Fair Work Act 2009 (Cth) Personal and carer’s leave Part-time and full-time employees 10 days paid personal/carer’s leave each year (pro rata) 2 days paid compassionate leave per occasion All employees (including casuals) 2 days unpaid carer’s leave per occasion (after paid leave if applicable is used).

Fair Work Act 2009 (Cth) When? – The employee is sick or injured – The employee needs to care for an immediate family or household member who's sick, injured or has an unexpected emergency How? -Provide notice (as soon as practicable) incl. expected duration -Provide “reasonable” evidence to substantiate leave

Disability Discrimination Act Discrimination occurring after 5 August 2009 Broad definition of: - employee (including prospective) - employment - disabilities - acts – interviewing, hiring, dismissing, promoting, transferring, training, benefits, terms & conditions,

Disability Discrimination Act Requirement to make reasonable adjustments Anything that helps a person with disability have equal access to the workplace Adjustment is reasonable if it doesn’t cause an “unjustifiable hardship” Might include flexible working arrangements, provision of aids, devices and adaptive technology, modification of premises, leave

Disability Discrimination Act Requirement to make reasonable adjustments Direct Discrimination: Employer does not make, or proposes not to make, reasonable adjustments for an employee Failure to make the reasonable adjustments results, or would result, in less favourable treatment of the employee compared with an employee in a similar circumstance

Disability Discrimination Act Direct Discrimination – Example Julie has cerebral palsy. She works as a researcher in a laboratory. Each year, Julie and her colleagues are given an allowance each so that they can attend conferences to either present papers or increase knowledge. Julie’s colleagues usually attend 3 conferences each per year with their allowance. Julie however needs to travel with an attendant to help her with tasks such as dressing and eating. Because Julie’s allowance must also pay for her attendant to travel with her she usually only attends 1 or 2 conferences a year. Julie asks her employer to give her a larger allowance so she can attend the same number of conferences as her colleagues.

Disability Discrimination Act Requirement to make reasonable adjustments Indirect Discrimination: employee must comply with a requirement or condition (which is reasonable in the circumstances) because of the disability employee can only comply if employer made reasonable adjustments (RA) employer doesn’t or proposes not to make RA failure to make RA disadvantages persons with the disability

Disability Discrimination Act Indirect Discrimination – Example Mark is an editor. Mark also has schizophrenia. He finds it difficult to concentrate in the busy office where he works and for the past few weeks he has not managed to achieve targets set by his boss. He has been told that if he doesn’t start meeting targets he will be dismissed. Mark asks his boss whether he can rearrange his work so that he can either start later in the day and work back so he is at work when the office is quieter or spend some time working from home.

Disability Discrimination Act Requests for information It is unlawful for an employer to request or require an employee to provide information if: the employer requests or requires the information in connection with, or for the purposes of, unlawful discrimination and i. people without the disability wouldn’t be requested or required to provide the information; or ii. the information relates to the disability.

Disability Discrimination Act Requests for information - example Doug is a labourer and has epilepsy. One day he has a epileptic seizure at work. After time off he returns to work with a clearance from his doctor saying he is fit for all duties. His employer asks a lot of questions about his driver’s license- he shows them the condition marked on the back of his license which requires he get an annual medical. His employer tells Doug that he must get a letter from the RTA stating the dates on which he has had medicals in the past and that he has always passed those medicals or he will not be allowed to drive at work anymore.