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Review of the Disability Discrimination Act 1992 – Submission by the Australian Council of Trade Unions

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Review of the Disability Discrimination Act 1992

Submission by the Australian Council of Trade Unions to the Disability Discrimination Act 1992 Review – 14 November 2025

ACTU Submission, 14 November 2025
ACTU D. No 50/2025

Contents

  • Introduction

Consultation Questions …………………………………………………………………………………….––––– 4

Conclusion …………………………………………………………………………………………………..———–– 28

Introduction

  1. Since its formation in 1927, the ACTU has been the peak trade union body in Australia. There is no other national confederation representing unions. For over 90 years, the ACTU has played the leading role in advocating before the Fair Work Commission, and its statutory predecessors, for the improvement of employment conditions for employees. We have consulted with governments in the development of almost every legislative measure concerning employment conditions and trade union regulation over that period.

  2. The ACTU consists of affiliated unions and state and regional trades and labour councils. There are currently 35 ACTU affiliates. They have approximately 1.7 million members who are engaged across a broad spectrum of industries and occupations in the public and private sectors.

  3. The ACTU welcomes the opportunity to respond to the Disability Discrimination Act 1992 (“the DDA”) Review Issues Paper (“the Issues Paper”). As the peak body representing Australian workers, the ACTU’s focus is on ensuring that all workers, including those with disability, have access to safe, inclusive, and equitable workplaces. The DDA is a critical legislative instrument in advancing these objectives and in upholding the rights of people with disability across all areas of public life, including in employment.

  4. Despite a significant number of reviews recommending legislative and policy reform, landing substantive and necessary reform to disability discrimination legislation has proven difficult at a federal level. It is widely recognised that people with disability continue to face significant barriers to participation in the workforce and suffer from the attendant poor socio-economic and health outcomes. The need for effective reform in the context of the workplace was shown in the Australian Bureau of Statistics 2022 data1 that reported:

  • The median gross personal income of people with disability was $575 per week, compared with $1055 per week for people without disability.

1 Which appears to be the most recent reported data.

  • Among people with disability who reported their income, 44.8% lived in a household in the lowest two equivalised household income quintiles, compared to 24.5% of people without disability

  • The unemployment rate was 7.5% for people with disability, down from 10.3% in 2018, but more than twice the rate for people without disability (3.1%).

  • Among people with disability aged 15 years and over (living in households) 9.9% had experienced discrimination in the last 12 months, with that figure rising to 17.6% for young people aged 15-35.

  • LGB+ people with disability were almost three times more likely to experience discrimination compared with heterosexual people with disability (27.7% compared with 8.7%).

  • Of those with disability in the labour force (aged 15-64 years) who experienced discrimination, common sources of discrimination were their employer (40.2%) followed by work colleagues (37.7%).2

  1. The Australian Human Rights Commission reports that it consistently receives more complaints under the DDA than any other anti-discrimination law, with disability discrimination accounting for 43% of all complaints in 2023–2024. The most common areas of complaint are employment (29%), education (11%), and the provision of goods, services and facilities (33%).3 ACTU affiliates continue to report frustrating delays in having disability discrimination matters for their members progressed in a timely way.

  2. The Disability Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (“the Disability Royal Commission”) was effective in changing community perceptions and potentially the policy landscape. However, two years on, the journey from the Disability Royal Commission’s recommendation to reform remains to be completed.

2 Australian Bureau of Statistics. (2023). Disability, Ageing and Carers, Australia: Summary of Findings 2022 (p. 20). https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release.

3 Australian Human Rights Commission. (2024). Complaint statistics tables 2023–24 (Appendix to the Annual Report). https://humanrights.gov.au/sites/default/files/document/publication/ar_2023-24_complaint_stats_tables_1.docx

  1. The ACTU submits that the findings of the Disability Royal Commission and the context provided in the Issues Paper should put beyond doubt any question that the DDA must be strengthened to address persistent discrimination and to take significantly greater steps towards workplaces being genuinely inclusive. The ACTU supports reforms that would:

  • Simplify and clarify the definitions of direct and indirect discrimination, including removing unnecessary technical barriers to making a complaint.

  • Address intersectionality and the compounding effects of discrimination based on multiple attributes, including disability, gender, race, and age.

  • Introduce a positive duty on all employers and duty holders to proactively eliminate discrimination.

  • Strengthen the duty to provide adjustments, ensuring that the onus does not fall solely on workers with disability to initiate and negotiate for reasonable accommodations.

  • Clarify and limit the use of “inherent requirements” as a justification for discrimination, ensuring that employers demonstrate genuine necessity and consider reasonable adjustments before relying on this exception

  1. The ACTU also wishes to flag the important work many of our affiliate unions do in representing people with disability and their families. Those affiliates have extensive experience in supporting and seeking solutions to the workplace discrimination faced by members with disabilities. The ACTU commends the submissions made by our affiliates to the Review, generated as they are, from the lived experience of our affiliates’ members and the affiliates’ ongoing efforts to support them at work.

  2. In this submission, the ACTU addresses a significant number of the Consultation Questions contained in the Issues Paper. Given the primary focus of the ACTU is in relation to workplace issues, and the number of other organisations with specific expertise in the area, it is however, not the ACTU’s intention to address all Consultation Questions. The ACTU nevertheless seeks to express our support for substantive progress to be made in all areas of the Review. It is time Australian governments changed our systems and structures to foster a more inclusive, better society. We believe that this Review will be an important step to achieving that goal.

Consultation Questions

Definition of Disability

  1. How should disability be defined in the Disability Discrimination Act?

  2. What factors should be considered in developing a new definition of disability?

  3. The ACTU supports the updating of the definition of disability in the DDA. At a minimum, the definition should be amended to update and modernise the language in line with contemporary understandings of disability, avoiding negative and deficit-based language. It may also be necessary to amend the definition of disability to better capture less visible disabilities such as chronic illnesses and injuries – the experience of at least one of our affiliates is that there are often disputes about whether such conditions meet the definition of disability.

  4. On the question of how disability should be defined in the DDA, the ACTU respectfully defers to the expertise of our affiliates and other organisations that specialise in disability advocacy and policy. These organisations possess direct experience and an invaluable understanding of the lived realities and diverse needs of people with disability. It is that experience and understanding which should be used to inform an inclusive and effective definition.

  5. Finally, definitions should be consistent across legislative frameworks – for example, the Fair Work Act 2009 (Cth) (“the FW Act”) should adopt any updated definition in the DDA.

Addressing Intersectionality

  1. Would the Disability Discrimination Act be strengthened by expressly allowing claims to be brought for multiple or combined protected attributes?

  2. Could any other changes be made to the Disability Discrimination Act to recognise and provide protection for people with disability who have intersecting identities, or addressing compounding discrimination?

  3. The ACTU supports the Disability Royal Commission recommendation that there be a new legislative approach to intersectional discrimination that departs from the current ‘single-axis’ model of Australian discrimination law.4 The practical and legal shortcomings of the current legal position are well known and, as they are in many places, usefully documented by Professor McCallum in his Research Report prepared for the Disability Royal Commission.5 The experience of our affiliates confirms that a person seeking a remedy for discrimination is unnecessarily and unfairly burdened by being put to proof under multiple tests in multiple pieces of legislation, in circumstances where they lack access to crucial information about why employment decisions affecting their members were made. To make remedies to discrimination for workers with a disability contingent upon complicated pleadings across several pieces of legislation, is an obvious access to justice issue. An approach based upon claims being allowed to be brought for multiple or combined protected attributes would strengthen the DDA.

  4. A typical example given by an affiliate was a complaint of discrimination from a young woman where the reason for the discrimination could have been on the basis of multiple protected attributes. The union had to choose what it thought was the best option based on the very limited information it had. Recognition of intersectionality would have provided a fairer and more effective remedy for the worker.

4 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023, September 29). Final Report – Volume 4: Realising the human rights of people with disability (p. 173). Australian Government. https://disability.royalcommission.gov.au/publications/final-report-volume-4-realising-human-rights-people-with-disability

5 McCallum, R. AO. (2020, October). The United Nations Convention on the Rights of Persons with Disabilities: An assessment of Australia’s level of compliance (p. 20). Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. https://disability.royalcommission.gov.au/system/files/2020-10/Research%20Report%20-%20The%20United%20Nations%20Convention%20on%20the%20Rights%20of%20Persons%20with%20Disabilities%20-%20An%20Assessment%20of%20Australia%E2%80%99s%20Level%20of%20Compliance%201.pdf

  1. The ACTU strongly supports the proposed removal, or amendment, of the comparator test as being likely to improve access to remedies for those exposed to intersectional discrimination.6 The removal of the comparator test, and the substitution of the detriment test has been repeatedly recommended by, amongst others, the Australian Human Rights Commission.7 These are no longer new ideas, in our view, the case for change is now overwhelming.

  2. The ACTU notes that the Issues Paper raises that the FW Act uses a somewhat similar test to the proposed detriment test, by way of a prohibition on “adverse action” being taken against the person on the basis of protected attributes, including physical or mental disability.8 The Review should be aware that not all of the potential circumstances in the current s.342(1) Item 1 eschew the need for identifying a comparator however, the ACTU agrees with the Issues Paper that the wording of paragraph (c) of Item 1, “alter the position of the employee to the employee’s prejudice” is generally considered to be similar in effect to the detriment test and does not require a comparator.9 We do not understand the FW Act’s “adverse action” framework to be being proposed by the Issues Paper, rather its reference appears to be an example of other workable legislative approaches that do not utilise a comparator. If consideration is to be given to adopting the adverse action framework, ancillary issues with that framework will need to be considered. For example, as the authors of Creighton & Stewart observe:

For conduct to be adverse it must be ‘action … taken by an employer against an employee. Adverse action can consist of some types of inaction. But as prejudicial alteration requires change and a comparison of the employee’s position before and after the act or omission, the maintenance of the status quo rarely effects any change.10

6 Issues paper at page 28.

7 Australian Human Rights Commission. (2021, December 10). Free & equal: A reform agenda for federal discrimination laws. Australian Human Rights Commission. https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-reform-agenda-federal-discrimination-laws at pages 279 to 284.

8 Issues paper at page 31.

9 See for example paragraphs [20.21] and [20.70] to [20.71] of Stewart, A., Forsyth, A., Irving, M., Johnstone, R., & McCrystal, S. (2025). Creighton & Stewart’s labour law (7th ed.). The Federation Press.

10 Stewart, A., Forsyth, A., Irving, M., Johnstone, R., & McCrystal, S. (2025). Creighton & Stewart’s labour law (7th ed.). The Federation Press. Page 828 at paragraph [20.72].

  1. In that respect, “adverse action” would appear to be more narrow than the detriment test in the Victorian Equal Opportunity Act 2010, for example, which at section 18 of that Act does not appear so limited, in referring at subsection (d) to an employee being subject to any other detriment.11 Maintenance of a discriminatory status quo is self-evidently problematic from a policy perspective and, for a variety of unrelated reasons touched on elsewhere in this submission, the experience of the ACTU’s affiliates is that the general protections contained in the FW Act have often not proven to be a useful avenue for applicants. For those reasons, the ACTU would suggest some caution in any adoption of the “adverse action” concept from the FW Act.

Amending the Definition of Direct Discrimination

  1. What test should be used to ensure that the definition of direct discrimination is easy to understand and implement for both duty holders and people with disability, and why?

  2. How should the burden of proof be addressed in the Disability Discrimination Act?

  3. The ACTU supports the making of changes to the definition of direct discrimination to make it easier to understand and implement for people with a disability. The ACTU agrees with the problems raised by multiple parties and the Royal Commission with respect to both the identification of a comparator and the difficulties faced by applicants to prove the reason that they were treated less favourably was “because of” their disability. The problems are well recognised, and we do not seek to repeat what other bodies and reviews have identified. As we have submitted elsewhere in this submission, the complexities of legal proceedings to obtain relief facing people with a disability are an access to justice barrier and should be addressed. For the reasons posited by the “multiple reviews and inquiries” referred to on page 31 of the Issues Paper, the ACTU supports the removal of the comparator test and the adoption of a detriment test.

  4. The experience of the ACTU’s affiliates confirms the Issues Paper’s observation on page 31 that it has proven difficult for an employee with a disability to establish the actual reasons for the discriminatory action taken against them. The ACTU strongly supports a

11 See also s.10(2)(d) Discrimination Act 1991 (ACT) ‘by subjecting the employee to any other detriment’; or ‘s.15(1)(f) Anti-Discrimination Act 1991 (Qld) “by treating a worker unfavourably in any way in connection with work’.

change to address the inherent asymmetry in information with respect to the reasons for which an employer takes action against another person. Specifically, we support the reversal of the burden of proof. It is appropriate that the respondent be put to proof that the impugned treatment was not taken because of, or on the basis of, an applicant’s disability.

  1. The Issues Paper on pages 31 and 32 refers to the reverse burden of proof in the FW Act. The ACTU however, again, counsels some caution with respect to the approach taken in the FW Act. The court’s application of that aspect of the FW Act, and in particular the fine distinctions that have been observed with respect to the alleged reasons of the decision maker, has significantly undermined the available protections in a way that has at times led to counterintuitive and unsatisfactory outcomes. In our affiliates’ experience the adverse action laws, while being conceptually strong have been, paradoxically, relatively fragile in practice.

  2. A weakness of the model is that the reversed burden of proof can be rebutted by the direct evidence of the relevant decision maker. On the face of the laws, this may, of course, appear unproblematic, even appropriate. In practice however, unions are often reluctant to pursue general protections claims under the FW Act, having observed a pattern in which employers present post hoc justifications for dismissals that, while facially lawful, appear to be strategically constructed to withstand legal scrutiny. These justifications frequently emerge only after proceedings commence, raising concerns about their authenticity and the reliability of decision maker’s evidence.

  3. The difficulties have been compounded by the fine distinctions the courts have been willing to recognise in the stated reasoning of the relevant decision maker, leading to what has been described as the “collateral consequence defence”.12 The collateral consequence defence operates as follows. An applicant argues that their conduct has a protected attribute and that the respondent took action against them because of a protected attribute. In response, a respondent relying on the collateral consequence defence will argue that the applicant’s conduct may have had a protected attribute, however, the reason adverse action was taken against them by the respondent was not because of the protected attribute, but because the applicant’s conduct caused

12 See the discussion at paragraphs [20.101] to [20.112].

something else to happen and the adverse action was taken only because of that consequence.

  1. The difficulty the defence creates for employees and their representatives can be seen starkly in the case of CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76 (3 June 2015) (“CFMEU v Endeavour Coal Pty Ltd”). In CFMEU v Endeavour Coal Pty Ltd, an employee took 30 days of personal leave over three years, 29 of which were lawfully taken. The employer subsequently took adverse action against the employee. Although the leave was a clear exercise of a workplace right, that is, the taking of personal leave, the decision-maker gave evidence that the action was motivated solely by concerns about the employee’s attendance reliability. The union argued that the attendance record was itself a consequence of the lawful exercise of the right to take leave. However, applying the reasoning in the earlier High Court decisions in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; and CFMEU v BHP Coal [2014] HCA 41, the Full Federal Court held that the dismissal was not “because of” the exercise of the workplace right, but rather due to the perceived unreliability of attendance resulting from that exercise. As Jessup J observed at paragraph [77]:

“[The employee’s] absences can bear two characterisations. They can be seen as the exercise of lawful rights … They can also be seen as an unreliable attendance record. Which of these characterisations Mr Young put upon [the employee’s] actions is a purely factual inquiry which the trial judge resolved.”

  1. The risk of the above limitations being carried into the disability discrimination jurisdiction would appear to be not inconsiderable, particularly given the somewhat analogous judicial parsing in Sklavos v Australasian College of Dermatologists [2017] FCAFC 128. That is not to say that reversing the burden of proof in the DDA would not be a worthwhile step forward, see for instance the high profile matter of Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873. However, the Review should be cognisant of the complications that have accompanied the reverse onus provisions with respect to adverse action in the FW Act in practice.

  2. For the above reason, the ACTU would support an approach that sought to avoid the type of distinctions between “cause” and “reason” evident in the line of authority of which CFMEU v. Endeavour Coal Pty Ltd is a part. One possible alternative would appear to be to provide that for the purposes of construing the words “because of a disability” the legislation expressly provide that this could include any action where disability was a reason, motive, purpose or causal factor (whether direct or indirect) in the person’s decision-making.

Amending the Definition of Indirect Discrimination

  1. How could the definition of indirect discrimination be amended to ensure that it is easy to understand and implement for people with disability and duty holders?

  2. Should the reasonableness element in the definition of indirect discrimination be:

a. removed

b. retained and supplemented with a list of factors to consider

c. replaced by a legitimate and proportionate test

d. other

  1. Should the language of ‘does not or would not comply, or is not able or would not be able to comply’ be removed from the definition of indirect discrimination?

  2. The ACTU supports the definition of indirect discrimination being amended to make it easier to use. The ACTU submits that the current test should be simplified by removing the reasonableness element from the definition, with the focus to be solely on unjustifiable hardship. We prefer this to the alternatives discussed in the Issues Paper proposing additional guidance on non-exhaustive factors to consider when determining whether something is reasonable or adopting a legitimate and proportionate test. Our primary concern is that these alternatives may introduce unnecessary and/or unintended complexity into the provisions.

  3. The ACTU also supports removing the “inability to comply” requirement, as it would appear unnecessary, potentially confusing and is not included in other comparable anti-discrimination legislation such as the Sex Discrimination Act 1984 (“the SDA”).

Interpreting the Disability Discrimination Act in line with the Convention on the Rights of Persons with Disabilities

  1. Should the Disabilities Convention be included in the objects provision of the Disability Discrimination Act?

  2. Should the Disability Discrimination Act be expressly required to be interpreted in a way that is beneficial to people with disability, in line with human rights treaties?

  3. The ACTU supports the Disabilities Convention being included in the objects provision of the DDA for the reasons identified in the Issues Paper including:

(a) The DDA is a key piece of legislation through which Australia fulfills its obligations under the Disabilities Convention. As such, its inclusions in the objects can only further assist in Australia meeting its obligations.

(b) It is already referred to in several other pieces of Commonwealth legislation specific to people with a disability.

(c) It would provide greater legal certainty than relying on the common law or the Acts Interpretation Act 1901 (Cth). The ACTU notes that it would also likely improve the general public’s awareness of the application and relevance of the Convention rather than relying on the indirect application through the common law or the Acts Interpretation Act 1901.

(d) It was recommended by the Disability Royal Commission.

  1. The ACTU also submits that as Australia is a signatory to the Convention, taking further steps to implement the Convention’s obligations would better demonstrate Australia’s commitment to, and compliance with the Convention, positively contributing to Australia’s diplomatic reputation and encouraging other states to themselves further commit to substantive implementation.

  2. The express requirement that the legislation be interpreted beneficially and the inclusion of a reference to human rights treaties is consistent with the approach of the FW Act, where the objects contained in s.3 include:

“(a) providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations [bolding added].”

  1. In relation to question 11 of the Issues Paper - which asks whether the DDA should be amended to require interpretation in a manner beneficial to people with disability - the ACTU notes that explicit references to “promoting gender equality” were only recently added to the objects of the Fair Work Act. These changes were introduced by the Fair Work (Secure Jobs Better Pay) Act 2022, with the relevant amendments taking effect in December 2022. At that time, other sections of the legislation were also updated to include direct references to gender equality. For example, the “modern awards objective” in section 134(1) of the Fair Work Act was amended to incorporate a new objective:

“(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation”

  1. Similarly, the “minimum wages objective” at s 284(1) of the FW Act was amended to include an additional new objective:

(aa) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value eliminating gender-based undervaluation of work and addressing gender pay gaps.

  1. The inclusion of specific references to gender equality in the objects of the FW Act have proven to make a substantive difference to decisions of the Fair Work Commission, as noted by Bray and Preston in the Secure Jobs, Better Pay Review:

“24.2.2.1 The 2022−23 Annual Wage Review
The FWC, constituted by an Expert Panel, is required to review and make an order concerning the NMW and modern award minimum wages each year (called the Annual Wage Review (AWR)). In the 2022−23 AWR the Expert Panel noted the

Secure Jobs, Better Pay amendments have the effect of giving greater emphasis to the issues of gender equality and job security. They discuss how the amendments were considered at section 2.2 of their decision.

In its decision, the Expert Panel refers to the new requirement in the minimum wage objective to ‘achieve gender equality’ and ‘eliminate gender-based undervaluation of work’. The amendments, they note, mean that AWR decisions must now consider the ‘elimination of gender-based undervaluation’ and [gender wage gaps] GWGs when determining the annual adjustment to minimum wages – a departure from previous principles guiding AWR decisions.

Following consideration of these new objects, the Expert Panel determined that the historical alignment of the NMW with the C14 wage rate in modern awards (the lowest modern award minimum wage) rate should be ended and that there should be a wider review, with supporting research, as to the appropriate level of alignment for the NMW.

The Expert Panel also determined that the NMW and the minimum rates in modern awards be increased by 5.75%. This was significantly higher than the general rate of wage growth for the workforce at that time (see Chapter 22, Figure 20). A stated factor weighing in their decision to award this increase was evidence showing that women are disproportionately award-reliant and that the new minimum wage objective requires that the Expert Panel take the gender pay gap into account in determining the minimum rates in modern awards.

24.2.2.2 The 2023−24 Annual Wage Review

In the 2023−24 AWR decision the Expert Panel expressly considered the modern award objective of needing to improve access to secure work across the economy and the potential impacts of their decision on casual employees.

The Expert Panel also ‘decided to increase the National Minimum Wage and all modern award minimum wage rates by 3.75 per cent, effective from 1 July 2024’, noting that it had considered a number of FW Act requirements, including the need to achieve gender equality, and set out its program for ‘the timely resolution

of gender undervaluation issues arising in respect of certain modern awards.” [footnotes omitted]13

  1. For the above reasons, the ACTU submits that the proposed amendments to the objects of the DDA have potential to make substantive improvements to the lives of people with a disability and should be adopted.

Positive duty for duty holders to eliminate discrimination

  1. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

  2. Are there lessons from the operation of the positive duty in the Sex Discrimination Act that could be incorporated into a positive duty in the Disability Discrimination Act?

  3. What costs, benefits and other impacts would duty holders experience in meeting a positive duty under the Disability Discrimination Act? If you are an existing duty holder under the Disability Discrimination Act, please specify how you think meeting a positive duty would impact you.

  4. Should there be exceptions or limits to the application of a positive duty?

  5. The ACTU strongly supports the implementation of a positive duty in the DDA broadly modelled on those introduced to the SDA. A positive duty will assist in preventing discrimination from occurring rather than relying on a reactive case-by-case approach. As the Issues Paper discusses, such a duty has been recommended by numerous reviews and inquiries into Australian anti-discrimination law. Enabling a third party to enforce the law would also help shift the compliance burden from people with a disability who face significant barriers to proceeding with a formal complaint.

13 Bray, M., & Preston, A. (2025). Final report of the Secure Jobs, Better Pay Review. Independent Review Panel. https://www.dewr.gov.au/download/17101/final-report-secure-jobs-better-pay-review/40698/final-report-secure-jobs-better-pay-review/pdf at pages 219 - 220.

  1. The ACTU supports the proposed positive duty applying at a minimum to the coverage of the workplace in the manner of the SDA. The ACTU is not in principle opposed to a broader application of the duty however, will defer to the views of other organisations and our affiliates with a greater level of relevant lived experience of the issues and the associated regulation outside the workplace.

  2. The Issues Paper in Box 13 contains a hypothetical example, drawn from s.47C of the SDA, providing matters that are to be taken into account in determining whether a positive duty holder complies. Those matters, aside from the general “any other relevant matter”, are focused solely upon the duty holder’s circumstances. The ACTU submits that it would be appropriate to also include matters relevant to the workers who may experience discrimination. We say this for two reasons. Firstly, it would avoid any unintended limitation arising by way of the ejusdem generis rule. The ACTU is concerned that listing only specific matters that apply to the duty hold unnecessarily risks the finding of a relevant genus and exclusion of considerations of greater relevance to workers by, perhaps inadvertently, confining “other relevant matter”. Secondly, if the circumstances of employees are to be considered, it would assist employers and employees understanding of how the rule is applied if those matters were included.

  3. In the FW Act, where rights or obligations are subject to a requirement of reasonableness, the legislation will usually refer to considerations specific to employers and employees. For example, in s.114 of the FW Act, whether a request to work on a public holiday is reasonable will depend, inter alia, upon “the nature of the employer’s workplace or enterprise (including its operational requirements and the nature of the work performed by the employee” and “the employee’s personal circumstances, including family responsibilities”. Another example can be found in s.62 of the FW Act (Maximum weekly hours).

  4. Further, we submit that specific consideration could be given to the consequences of the failure to meet the duty. A somewhat similar consideration can be found in the FW Act context in section s.73(3) where a request for an extension of unpaid parental leave can only be refused if the employer has had regard to, inter alia, the consequences of the refusal. Another example can be found in s.65A(3)(c) of the FW Act where a request for flexible working arrangements can only be refused if the employer has had regard to the consequences of the refusal for the employee.

  5. On the issue of enforcement, the ACTU seeks that serious consideration be given to enable workers and unions to enforce the obligation or, if that is not adopted, in the alternative, to be able to make a complaint to the AHRC about non-compliance with the

positive duty prior to a worker being subject to unlawful discrimination. In our experience, the ability of workers and their representatives to be able to contribute to the monitoring and enforcement of the positive duty will self-empower workers and is significantly more likely to lead to broader compliance and better outcomes.

  1. Currently, all of the enforcement options for the positive duty in the Sex Discrimination Act lie with the Commission. There is no ability for workers or trade unions to make a complaint or bring claims regarding non-compliance with the positive duty. The ability for workers and unions to be able to make complaints and bring claims regarding non-compliance with the positive duty (including prior to any unlawful discrimination actually occurring) is crucial as it will share the burden of compliance, improve enforcement by allowing actors other than the Commission to enforce the law, and will help to drive systemic change.

  2. The dangers of an individual cause of action not attaching to the positive duty are illustrated in a Victorian case14 where the Tribunal found that it did not have jurisdiction to hear the Applicant’s claim that the Respondents had breached their positive duty under s15 of the Equal Opportunity Act 2010 (Vic) (EO Act) to take reasonable and proportionate measures to eliminate sexual harassment as far as possible, because the EO Act does not allow a person to apply to the Tribunal in respect of a contravention of s15. However, the Tribunal found that had the EO Act allowed the Applicant to allege that the Respondents had breached the positive duty, it would have found that allegation to be proven.

  3. Without the ability for workers and unions to make complaints and bring claims regarding a breach of the positive duty, there will be countless missed opportunities for enforcement and consequent systemic change. Allowing actors other than the Commission to enforce the law will greatly improve compliance especially in small-medium workplaces which may not be priorities for the Commission to investigate.15 The experience of unions with the enforcement of the Victorian positive duty is instructive in this respect. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) has seemed reluctant to pursue its compliance functions (for reasons which could

14 Oliver v Bassari (Human Rights) [2022] VCAT 329

15 For example, the Fair Work Ombudsman tends to limit its enforcement action (for example of wage theft) to larger employers and systemic breaches, due to resourcing constraints. The lack of provision for independent enforcement by any other actors means that wage theft goes largely unchecked amongst smaller to medium businesses.

include underfunding, under resourcing and difficulties in transitioning from its traditional educative functions to enforcement and compliance functions.) As a result, there have largely been no consequences for employers who fail to comply with the positive duty.

  1. In addition to having the ability to bring complaints and claims regarding the positive duty, trade unions and workers should also be given the right to pursue enforcement of compliance notices in the courts where the Commission does not do so within a period of time. Unfortunately, the experience of many unions with WHS regulators across the country is that compliance notices are often issued but not enforced, and only affected workers are able to challenge the non-enforcement. Unions have had enforcement powers in relation to WHS laws in various jurisdictions at different points in time. Therefore the DDA should allow for independent enforcement of compliance notices in the courts by trade unions and workers where the Commission does not do so within a period of time.

  2. Further, the DDA should require the Commission to notify, consult with, and give an opportunity to make submissions, to workers (former and current) and trade unions when exercising its compliance functions. Despite having the ability to conduct independent investigations into a breach of the positive duty for 11 years, VEOHRC has only recently undertaken its first investigation, which took two years to complete.16 Unfortunately, it did not speak to a single worker as part of that process. Whilst there was some limited consultation with relevant unions during the investigation, comprehensive recommendations provided by unions regarding what steps should be part of the investigation process were not followed. This resulted in an investigation process that largely consisted of reviewing policies and procedures and speaking to franchisees and managers. The outcomes of the investigation were largely concerned with the updating of policies and procedures, development of training, and communication to employees about complaints processes. Without a process for speaking to workers and unions about their experiences, the investigation was limited in the outcomes it could provide. Union experiences of enforceable undertakings being used as an alternate to investigations or other enforcement action under WHS legislation is that they often impose no further obligations or requirements on duty holders than the statutory duty already does, limiting

16 Victorian Equal Opportunity & Human Rights Commission (August 2022) Preventing sexual harassment in retail franchises: Investigation under the Equal Opportunity Act 2010. https://www.humanrights.vic.gov.au/legal-and-policy/research-reviews-and-investigations/retail-investigation/

their utility. They are often limited to a commitment to comply with the law in future, leaving workers who have raised issues disempowered and less likely to proactively report issues in future. Further, the Fair Work Ombudsman is moving away from using enforceable undertakings to a more coercive approach of using compliance notices, in what could be a further sign of their limitations. Workers and unions should be consulted prior to the adoption of an enforceable undertaking to ensure they will have utility, and to give workers agency. The DDA positive duty provisions should specify that in exercising its compliance functions (including the inquiry and enforceable undertakings functions), the Commission needs to notify, consult with and give an opportunity to make submissions to workers (both former and current) and trade unions. This will ensure that investigations have regard to worker experiences and perspectives, not just those of the employer or duty holder and their official documentation such as policies and procedures, and will therefore lead to more substantive change.

  1. Finally, serious consideration should be given to making directors and officers liable for breaches of the positive duty. This has precedent under WHS legislation, where directors and officers of companies are held liable for certain breaches.17 This would ensure that accountability for compliance with the positive duty is created at the highest level of organisations, and would be a significant driver of compliance and systemic change.

Strengthening the Duty to Provide Adjustments

  1. Would the creation of a stand-alone duty to provide adjustments better assist people with disability and duty holders to understand their rights and obligations?

  2. Should the scope of the duty to provide adjustments apply only to the existing areas of public life covered by the Disability Discrimination Act, or extend to other contexts?

  3. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

17 For example, s 27 of the Work Health and Safety Act 2011 (NSW), s144 and s145 of the Occupational Health and Safety Act 2004 (Vic).

  1. The ACTU strongly supports the creation of a stand-alone duty to provide adjustments to assist people with a disability, for the reasons identified by the Disability Royal Commission. Clearly the duty needs to be crafted in such a way that it deals with the wholly unsatisfactory consequences of the decision of the majority in Sklavos v Australasian College of Dermatologists (2017) 256 247. To insist that a person with a disability prove that an adjustment was not made, because they have a disability, rather than for some other reason, like cost or convenience, is to largely strip the duty of meaning beyond curtailing the behaviour of the very worst (and most unsophisticated) duty holders.

  2. The ACTU does not, at this time, seek to make a submission regarding the extension of the duty to contexts beyond the workplace.

  3. Finally, the ACTU supports the word “reasonable” being removed from the term “reasonable adjustments” to align the language with the legal effect as applied by the courts. The courts have already recognised that the term ‘reasonable adjustments’ means all adjustments up until the point of unjustifiable hardship. There is no scope for courts or duty holders to assess the ‘reasonableness’ of an adjustment outside the context of unjustifiable hardship.18 The current wording is sufficiently ambiguous with respect to the interaction of “reasonable” and “unjustifiable hardship” to be misunderstood by workers and their employers – to the practical and substantial detriment of employees and the potential legal detriment of employers. ACTU affiliates are keenly aware of such confusion taking place in workplaces where their members work.

  4. ACTU affiliates report significant disputation with employers in relation to the provision of reasonable adjustments, including in relation to the meaning of the word ‘reasonable.’ The lack of understanding about what the provision of reasonable adjustments means creates unnecessary barriers and means that our affiliates have to fight for adjustments to be made, which takes significant time and resources. A standalone duty and removal of the word reasonable would be of significant help in addressing these issues.

18 Watts v Australian Postal Corporation (2014) 222 FCR 220 at [22].

Definition of and Considerations for Unjustifiable Hardship

  1. What is your preferred approach to achieving greater fairness and transparency in claims of unjustifiable hardship:

a. the Disability Royal Commission amendment as proposed

b. a new definition of unjustifiable hardship

c. other

  1. The ACTU supports the addition of the factors identified by the Disability Royal Commission to be taken into consideration when deciding whether a specific adjustment would impose an unjustifiable hardship on duty holders who are an employer; that is:

(a) How much the person with the disability has been consulted; and

(b) What alternative options were available to remove or reduce hardship.

  1. The ACTU would go further, and suggest that a failure to consult should remove employer access to the “inherent requirements” exception. That an employer could rely on the exception without consulting with the person affected is inconsistent with community expectations around what is fair and reasonable in the workplace. Given the power and knowledge imbalances at play, the ACTU also submits that employees should also be given an explicit right to be represented by their union in such consultations.

  2. The ACTU also strongly supports introducing a requirement that duty holders keep records and document what they considered in claiming unjustifiable hardship. Employers should be required to document all potential alternatives, the cost of adjustments, and the consultation that has been undertaken, before refusing an adjustment on the basis of unjustifiable hardship. They should be required to provide reasons in writing to the person who has requested the adjustment, and why those reasons amount to unjustifiable hardship. Similar requirements can be found in the FW Act’s request for flexible work arrangements regime, with s.65A requiring that employers respond to a request in 21 days, that the response contains certain matters, including any alternative changes the employer can make, details of the reasons for the refusal, and how the particular business grounds for refusing the request apply to that request.

Currently, the onus falls too heavily on the person requesting adjustments, and requiring employers to provide reasons as to why the adjustment cannot be accommodated would help to shift that onus.

  1. The ACTU has concerns with the alternative definition contained in the Issues Paper. Most particularly, we are concerned that weighing the benefit to the person and community on a case-by-case basis against the detriment and cost to the duty holder appears potentially a cumbersome and difficult to apply test in practice for employees and employers.

Expanding the Factors Considered - the Inherent Requirements of Particular Work

  1. What are your views on amending the Disability Discrimination Act to consider the nature and extent of any adjustments made and encourage consultation between prospective or current employers and prospective or current employees before making employment decisions?

  2. Are there other amendments to the Disability Discrimination Act that could support engagement between prospective or current employers and prospective or current employees to better understand the inherent requirements of a job?

  3. Should any other amendments be made to the definition of inherent requirements, including factors that should be considered when deciding whether a person could carry out the inherent requirements of a job?

  4. ACTU affiliates report that the “inherent requirements” exception is a significant and often problematic limitation to the protection otherwise afforded to workers by the prohibition on unlawful discrimination. The ambiguity of the meaning of inherent requirements, particularly combined with the generally poor appreciation of the proper (legal) application of “reasonable adjustment” can, and does, in practice, leave workers with a disability lacking appropriate support and protection.

  5. One example given by affiliates is that employers in the health care industry (and other industries) often argue that it is an inherent requirement for staff (such as nurses) to be able to work rotating rosters, including night shift. This has meant members with caring responsibilities or health conditions that prevented them from working night shift were told their needs could not be accommodated.

  1. The ACTU submits that the “inherent requirements” exception to unlawful discrimination is in some respects discordant with the right to request flexible working arrangements under the FW Act. Notably, in the context of disability discrimination, a person having a disability, is one of the circumstances enlivening a right to request flexible working arrangements under s.65(1A)(c). While the legislative note under section 65(1) suggests that flexible working arrangements may not encompass the full scope of reasonable adjustments, in so far the provided examples include changes to hours, work patterns, and location, there nonetheless appears to be overlap between the two concepts.

  2. The ACTU submits that section 65 of the FW Act more closely aligns with contemporary expectations of fairness in workplace practices than the current reasonable adjustments framework under the Disability Discrimination Act, particularly in terms of the obligations it places on employers to engage constructively with employee requests. Subsection s.65A(3) of the FW Act provides:

(3) The employer may refuse the request only if:

(a) the employer has:

(i) discussed the request with the employee; and

(ii) genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and

(b) the employer and the employee have not reached such an agreement; and

(c) the employer has had regard to the consequences of the refusal for the employee;

and

(d) the refusal is on reasonable business grounds.

  1. Section 65A then provides guidance as to what reasonable business grounds may constitute and a process the employer must follow if the request is refused:

(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

(a) that the new working arrangements requested would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;

(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.

Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

(6) If the employer refuses the request, the written response under subsection (1) must:

(a) include details of the reasons for the refusal; and

(b) without limiting paragraph (a) of this subsection:

(i) set out the employer’s particular business grounds for refusing the request; and

(ii) explain how those grounds apply to the request; and

(c) either:

(i) set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or

(ii) state that there are no such changes; and

(d) set out the effect of sections 65B and 65C.

  1. Section 65C of the FW Act provides a mechanism by which disputes over, amongst other things, reasonable business grounds, can be arbitrated by the Fair Work Commission. The Fair Work Commission, a cost-free jurisdiction, will conciliate the matter first and if necessary, arbitrate.

  2. Accepting that the FW Act does not contain an express requirement for adjustments subject to the limitation of unjustifiable hardship, as found in the DDA, it is notable that the right to request flexible working arrangements is not constrained by the “inherent requirements” exception. In practice, ACTU affiliates report that this exception is often applied in a way that overstates what is essential to a role to avoid the inconvenience or cost of accommodating an employee’s needs. By contrast, section 65 adopts a more transparent and facilitative approach, aiming to support employees while still recognising the legitimate operational needs of employers and may provide a useful framework for mandated interactions between an employer and employee when considering reasonable adjustments and inherent requirements.

  3. In answer to Question 20 of the Issues Paper, the ACTU supports the DDA being amended to consider the nature and extent of any adjustments made and encourage consultation. Workers however are already in a very difficult situation where full and frank disclosure of a disability may lead not to adjustment but dismissal. In the reported experience of our affiliates, many employers do not approach such conversations in a supportive or constructive manner with a view to making adjustments, rather discussions too often become exercises in the employer identifying reasons why an employee cannot meet the allegedly inherent requirements of the position. Partly for that reason, if consultation is mandated, the ACTU submits that an employee should be given an explicit right to have a union representative in that consultation. Such rights are now found in industrial instruments concerning the introduction of major change in a workplace, or the change of rosters or hours of work as a result of being mandated by the FW Act (see for example

s.145A of the FW Act).19 There is, if anything, an even greater need for access to representation in the context of a discussion about “inherent requirements” and possible adjustments to be made allowing an employee to meet the inherent requirements of a position.

  1. Other parts of the FW Act may also be useful in updating the DDA to more contemporary standards applying to employees. For example, the FW Act provides an exemption from unfair dismissal remedies in circumstances of “genuine redundancy”. Section 389 of the FW Act requires that for a dismissal to be “genuine redundancy”, the employer must have complied with obligations to consult about the redundancy and that the redundancy is not a reasonable redundancy if “it would have been reasonable in all the circumstances for the person to be redeployed”. There would appear no sound policy reason why such limitations should also not apply to the dismissal of workers with a disability.

  2. The ACTU therefore recommends consideration be given to adopting similar exclusions in relation to the inherent requirements exception. That is, an employer be unable to rely on the exemption unless it can demonstrate that:

(a) mandated consultation and consideration of adjustments have occurred; and

(b) it was not reasonable in all the circumstances for the employee to be redeployed.

  1. The ACTU also supports amendments being made to provide more substance to the concept of “inherent requirements”. In the ACTU’s affiliates experience the current approach, that “begin[s] with terms and conditions of service”20 leaves an inappropriate level of uncertainty and, at least in practice, discretion with the employer.

  2. We note that while the Issues Paper states that “inherent requirements” is not a defined term in the DDA, some guidance is provided in s.21DA(2) which provides:

(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:

19 See for example clauses 34 and 35 of the General Retail Industry Award 2020.

20 X v Commonwealth (1999) 200 CLR 177 at paragraph [106].

(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;

(b) if the aggrieved person already works for the discriminator–the aggrieved person’s performance in working for the discriminator;

(c) any other factor that it is reasonable to take into account

  1. The ACTU submits that in addition to the matters identified above, in relation to consultation, adjustments and redeployment, that consideration be given to the adopting further indicia. Examples, again, may, be drawn from the FW Act.

  2. In particular, the ACTU posits the first indicia from s.15A(2) of the FW Act concerning whether an employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work, that is “on the basis of the real substance, practical reality and true nature of the employment relationship.” The ACTU submits that a legislative direction to focus on the real substance and practical reality of the employment would assist in better focussing the consideration of what are inherent requirements on the true nature of the employee’s work.

Future-proofing the Disability Discrimination Act

  1. Are there examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the Disability Discrimination Act?

  2. What additional guidance materials should be provided to the community, including duty holders, about the operation of the Disability Discrimination Act or specific amendments proposed in this paper?

  3. How can we ensure the Disability Discrimination Act remains fit for purpose into the future?

  4. Are there any other issues with the Disability Discrimination Act that should be considered as part of this review?

  1. The ACTU has provided examples of legislative provisions in Commonwealth or state and territory anti-discrimination law that could be drawn on to modernise or strengthen the DDA earlier in this submission in relation to the FW Act. We commend those examples to the Review.

  2. In addition, ACTU wishes to raise several other issues with the DDA and / or its practical application that should be considered as part of this review.

Resourcing and Powers of the AHRC

  1. The ACTU is very concerned that any increase in the role of the AHRC is accompanied by an associated and proportionate increase in resourcing. Affiliates report that the wait times for a conciliation on disability discrimination matters are already a significant barrier to justice, with wait times of 12 months or more being common. If the AHRC is to be given further functions, it is essential that it be supported with additional resources, as well as sufficient resources to deal with complaints.

  2. The ACTU is also concerned that the powers available to the AHRC reflect any additional role the Commission is given in compliance and that in exercising those powers, for example in relation to a positive duty, the Commission be required to consult with affected workers and their representatives. Depending on the role provided to the AHRC, it may be appropriate that it be given the powers available to WHS inspectorates.

Supplementary Avenues for Redress

  1. The Fair Work Commission presently provides applicants with a low cost, timely avenue for redress in relation to a range of workplace disputes. Consideration could be given to further extending the Commission’s jurisdiction with respect to disability matters, including a process for disputes over requests for adjustments to work to facilitate better employment outcomes for employees with a disability. An ACTU affiliate has similarly identified the New South Wales Industrial Relations Commission as a potential additional avenue for consideration for employees in the NSW State system.

Indoor Air Quality (IAQ) Issues – More Inclusive Workplaces and the Positive Duty

  1. The Australian Bureau of Statistic’s “Health Conditions Prevalence” data released in 2023 showed that 49.9% of Australians live with a chronic health condition.21 The ACTU is aware that advocates for people with chronic health conditions have increasingly raised Indoor Air Quality as a serious concern, particularly for those who may be immunocompromised and vulnerable to air borne diseases such as colds, flu and COVID.

  2. The ACTU recommends that guidance materials relating to the DDA be reviewed to include specific reference to air quality considerations, including the use of filtration, ventilation standards, and risk mitigation strategies for airborne pathogens. This would assist employers and service providers in understanding their obligations to make adjustments that support safe participation.

  3. In line with proposals to introduce a positive duty under the DDA, the ACTU supports the inclusion of proactive obligations on employers and building managers to assess and address IAQ risks, particularly where these may disproportionately affect people with disability or chronic illness.

Conclusion

  1. In conclusion, the ACTU strongly believes that this Review provides an opportunity for meaningful progress towards workplace equity for people with a disability. Such an opportunity will require not only legislative reform but also practical measures to ensure those reforms are effective. The ACTU is broadly in agreement with the majority of the proposed reforms outlined in the Issues Paper concerning workplaces. Where we have thought it potentially beneficial, or necessary, we have raised matters of concern as well as additional matters, both legislative and practical for the consideration of the Review. We thank the Attorney-General’s department for the opportunity to contribute to this process and look forward to progress being made in this important area of policy and law.

21 Australian Bureau of Statistics. (2022). Health conditions prevalence. ABS. https://www.abs.gov.au/statistics/health/health-conditions-and-risks/health-conditions-prevalence/latest-release

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