Employers need to make sure that they have best practice anti-discrimination practices in place, including reviewing policies and refresher training, in light of recent and impending changes to this area of law.
The Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) (the Bill) has recently been passed by federal parliament. The Bill (once enacted) will make significant amendments to federal anti-discrimination legislation, particularly the Disability Discrimination Act 1992 (Cth) (the DDA). The amendments to the DDA have been made as a result of a 2004 review conducted by the Australian Government Productivity Commission.
In addition, new provisions in the Fair Work Act 2009 (Cth) (the FW Act) dealing with discrimination in the workplace commenced on 1 July 2009.
These changes create important obligations for employers.
What are the key changes to the Disability Discrimination Act?
Key changes to the DDA include:
- amendments which clarify and emphasise the need for employers to consider and make reasonable adjustments for people with a disability;
- amendments to the definition of indirect discrimination which:
- make it easier for employees to meet the test that they have been indirectly discriminated against; and
- mean that employers will now have to prove that the requirement or condition being imposed was reasonable (previously employees had to prove the unreasonablesness of the requirement or condition);
- changes to the unjustifiable hardship defence (which operates where it would be unjustifiably hard on an employer to accommodate an employee's disability). These changes include:
- unjustifiable hardship will now be available as a defence to discrimination claims in areas other than employment;
- clarification of the matters to be considered when determining unjustifiable hardship; and
- clarification that the onus of proving unjustifiable hardship lies with the person claiming it;
- the inherent requirements exception, which operates where an employee cannot perform the inherent requirements of his/her position as a result of a disability and allows for lawful termination of employment for this reason, will now be more widely available to employers; an
- clarification that the definition of disability includes behaviour that is a symptom or manifestation of the disability. This change endorses the majority view in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92.
Changes to the Age Discrimination Act and HREOC Act
The Bill (once enacted) also amends the Age Discrimination Act 2004 (Cth) (ADA) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act).
The ADA will be amended so that employees need only prove that age was a reason for the alleged behaviour which is the subject of the discrimination claim. Presently employees need to prove that age was the dominant reason for the alleged behaviour.
This change will, in many circumstances, make it easier for employees to claim that they were discriminated against on the basis of age.
The HREOC Act will be renamed the Australian Human Rights Commission Act 1986 (Cth) and the Human Rights and Equal Opportunity Commission will now officially be named the Australian Human Rights Commission.
Discrimination under the Fair Work Act
Employers should also be aware that the majority of the FW Act came into effect on 1 July 2009. Importantly, in the area of discrimination, the FW Act creates a new avenue for employees to bring a claim of discrimination against their employers.
Section 351 of the FW Act provides that an employer must not take adverse action against an employee or prospective employee because of the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Adverse action taken by an employer against an employee is defined broadly to include:
- dismissing an employee;
- injuring an employee in his/her employment;
- altering the employee’s position to his/her prejudice; or
- discriminating between employees.
Section 351 is a civil remedy provision. This means that Fair Work Ombudsman Inspectors may now investigate claims of discrimination in the workplace where the discrimination is alleged to be a breach of s.351 of the FW Act. This may include requiring the production of documents or interviewing relevant employees (including management).
In addition, an employee or Inspector can commence court proceedings against an employer under the FW Act.
If the complaint is upheld the relevant court may:
- order the employer to pay a penalty of up to $33,000;
- order that the employee be paid compensation for the loss he/she has suffered; and
- order that an employee be reinstated to their position.
In light of these changes, employers:
- need to understand the practical implications of these changes, particularly in relation to their approach to recruitment, the management of workplace issues and termination of employment;
- should review their existing policies and procedures to ensure that these changes are adequately addressed;
- should undertake refresher training for all staff on discrimination and appropriate workplace behaviour taking into account the new provisions under anti-discrimination legislation and the FW Act; and
- need to consider whether their document creation and management processes are adequate.