NDIA Accountability Project

Recommendations for improving disability discrimination enforcement and adjustment processes

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About Us

  1. The Australian Manufacturing Workers’ Union (AMWU) is the primary union representing Australian manufacturing workers. We are 60,000 members strong, and we live and work in every region and city of the country.

  2. The AMWU represents a range of members including mechanics, boilermakers, fitters, trimmers, machinists, maintenance workers, aircraft mechanic engineers, administrative officers, vehicle builders, fabricators, electroplaters, process workers, scientists, spray painters, toolmakers, analysts, plumbers, planners, welders, operators, panel beaters, crane drivers, assemblers, factory workers, drafts people, painters, riggers, and laboratory technicians.

Executive Summary

  1. The AMWU welcomes the opportunity to respond to the Attorney-General’s Department review into the Disability Discrimination Act 1992 (Cth). (‘DDA’) The AMWU supports many of the proposed changes in principle, in particular, the proposal to increase enforcement capability of the Australian Human Rights Commission (AHRC) and the reforms recommended by the Disability Royal Commission.

  2. The AMWU has confined its response to consultation questions that are particularly relevant to its members. In the absence of a response to any of the consultation questions the AMWU endorses and adopts the submission provided by the Australian Council of Trade Unions.

Consultation Questions

Q1: How should disability be defined in the Disability Discrimination Act?

  1. The AMWU considers that the definition of disability should be broad enough to capture chronic physical or mental conditions that affect daily life and functions. Most AMWU members with a disability fall short of eligibility for the NDIS or Disability Support Pension (together; ‘Commonwealth frameworks’) and are unsupported by current legislation despite having functional requirements due to illness or injury.

  2. The AMWU holds concerns that the proposals and current model are overly replicative of the definitions in use by Commonwealth frameworks. A proposed addition to the definition has been provided as follows:

  1. disability, in relation to a person, means: (a) total or partial loss of the person’s bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person’s body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; (h) a disorder, illness, injury or disease that has persisted for at least six (6) months and/or has been diagnosed as chronic and its symptoms: (i) have had a tangible negative impact on a person’s daily life and functioning; or (ii) have resulted in total or partial loss of bodily or mental functions; or (iii) Require a medical treatment regime whose active and/or side effects may result in: a. a tangible negative effect on a person’s daily life and function; and/or b. a total or partial loss of bodily or mental function and includes a disability that: (hi) presently exists; or (ij) previously existed but no longer exists; or (jk) may exist in the future (including because of a genetic predisposition to that disability); or (kl) is imputed to a person. To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

  2. The AMWU’s suggested inclusion will make efforts to protect individuals who have chronic and debilitating conditions even if their condition would not meet the threshold under existing Commonwealth frameworks. Additionally, the AMWU is supportive of the proposed definition being adopted in the Fair Work Act 2009 (Cth) to improve consistency across frameworks. As for the modernisation of language the AMWU is supportive of the removal of deficit-based language, provided that any new syntax addresses the abovementioned gap in the existing definition.

Q6. How should the burden of proof be addressed in the Disability Discrimination Act?

  1. The AMWU generally supports the proposition that a model analogous to General Protections as seen in the Fair Work Act should be adopted, i.e. that the Applicant must prove they suffered a detriment and have a disability, and the Respondent must prove the detriment was not because of the Applicant’s disability.

  2. However, the warnings provided by the ACTU in its submission at paragraphs [19]-[24] are echoed by the AMWU. While principally the reversed onus should operate to protect the aggrieved person, the General Protections framework has proven problematic on occasion when utilised by a bad-faith actor.

Q12. If there was a positive duty in the Disability Discrimination Act, who should it apply to?

  1. The AMWU believes the implementation of a positive duty would improve the protective framework for workers by enabling them to challenge discrimination against the measures or potential lack thereof taken by the employer to prevent it. At a minimum, the definition of worker should be adopted in line with the Sex Discrimination Act. Equally, all businesses and organisations within Australia should be obliged as duty holders. The AMWU supports the broader recommendation of the Disability Royal Commission to have the duty apply to all duty-holders under the act.

Q13. 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?

  1. The AMWU is of the view that the Sex Discrimination Act’s recent positive duty amendments are still in their infancy and are yet to be tested/challenged. However, the immediate impact of a statutory obligation has, in the AMWU’s experience, been positive. Duty-holders are drafting proactive policies to make workplaces safer and are also rolling out training on those policies. There is nothing to indicate the same could not be achieved by its adoption in the DDA.

Q16. 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?

  1. The AMWU supports the findings of the Disability Royal Commission. As the issue paper alluded to, this would correct the interpretation in Skalvos and Watts v Australian Postal Corporation to restore the intended effect of the provisions.1

Q18. Would removing the word ‘reasonable’ from the term ‘reasonable adjustments’ to align the language with the legal effect create any unintended consequences?

  1. Noting that Courts have interpreted the term to mean all adjustments that do not incur an unjustifiable hardship, the AMWU agrees that the word ‘reasonable’ should be omitted. This is most relevant for the AMWU when employers refuse to make adjustments for permanently injured workers as part of their return to work or to provide permanently modified duties, often leading to the termination of these workers employment. It would assist by confining the argument to whether the ‘unjustifiable hardship’ exemption applies rather than the additional factor of whether the adjustment is reasonable.

Q19. 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 for e.g. where the benefit to the person and community would be outweighed by the detriment and cost to any person concerned c. other Please expand on your response.

  1. The AMWU prefers the amendment proposed by the DRC and is highly supportive of the following inclusions:

(a) That a requirement to consult with the individual; (b) That, if hardship is identified, the duty-holder must consider alternative measures available to alleviate hardship to provide an acceptable adjustment; and (c) That an employer is required to document the factors that informed a decision.

1 (2014) 222 FCR 220 [233]

  1. The AMWU’s members face the risk that if they acquire an injury or illness while working, without certain adjustments employers will deem that they cannot meet the inherent requirements for the job. Therefore, the threshold for an employer to rely on the ‘unjustifiable hardship’ exemption requires a high bar be established to achieve its intended purpose. Incorporating consultation and documentation requirements would allow AMWU to challenge bad actors that fail to discharge their obligations. The second stipulation on alternative measures also raises the obligations of the employer to accommodate the worker if an acceptable adjustment that avoids hardship can be identified.

  2. While the AMWU was initially supportive of the alternative definition, the concerns raised by the ACTU at paragraph [53] of its submission are shared, chiefly that the amorphous scope of the test could lead to unintended consequences for the person seeking adjustments. The AMWU would not be opposed to the alternative, provided appropriate guard rails and guidance for duty-holders are also provided to ensure a consistent approach.

Q20. 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?

  1. The AMWU agrees with the proposal of the Disability Royal Commission to insert the requirement for an employer to consider the nature and extent of any adjustments made and to consult with prospective/current workers. The nature of any adjustments made will be assessed on a case-by-case basis arising from the individualised needs of the person seeking them. Such adjustments must not be unreasonably withheld, particularly if the person seeking adjustments provides evidence from a medical practitioner or allied health professional (i.e. Occupational Therapist) that the nature and extent of the adjustment will allow the person to meet the inherent requirements of the job.

Q21. 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?

  1. The Act as it currently stands is ambiguous with how labour hire workers are dealt with in relation to “the inherent requirements of a job”. While 21A(3)(c) extends the working relationship to cover “contract workers”, which covers contractors, particularly self-employed contractors, it is not obvious that the definition extends to workers who are employed through labour-hire arrangements or who are hired through sub-contracting arrangements.

  2. In scenarios where a labour hire employee has limited or no day to day engagement with their actual employer it is imperative that it is clear that a “contract worker” relationship exists between a “host employer” and a “labour hire employee”. A definition similar to that in the Fair Work Act 2009 (Cth), would be appropriate.

  3. Additionally, the AMWU considers that in any consultation where a current or prospective employee is either seeking adjustments or otherwise to meet the inherent requirements that they be permitted to bring a workplace representative of their choice (including a union delegate or colleague, if currently employed). This is necessary as it is common for employers to be unclear on what requirements of the job are inherent, often citing requirements that are incidental not routine to the role (such as heavy lifting).

  4. Therefore, by allowing the individual to be present with another person who may be fulfilling the exact same role the unequal power balance is somewhat corrected as that third person will be able to make a more neutral assessment and assist the individual seeking adjustments to determine what can be readily accommodated.

Q22. 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?

  1. The AMWU submits that if a worker elects to provide medical advice that supports a treatment regime or aid that allows them to carry out the inherent requirements, this must be a factor considered by the employer. While appreciated that not every worker would be comfortable disclosing such information, if it is volunteered the AMWU considers that the employer must take it into account.

Case Study:

  1. An AMWU member on a FIFO roster takes prescribed medicinal cannabis to treat insomnia. To avoid failing the drug and alcohol testing at their workplace due to the presence of inactive metabolites, the member abstains from their prescribed treatment for 72 hours leading up to their next shift and whilst on shift. Ironically,

this means our member does not get good quality sleep prior to commencing work and whilst onsite is likely suffering impairment due to fatigue. This worker is unable to treat a debilitating and chronic condition due to fear of repercussions for not meeting policy requirements of employment.

  1. This is exacerbated in sectors such as the rail industry where presence of drug metabolites without impairment can still lead to criminal prosecution by the regulator and routinely leads to termination of employment. The current drug testing methods used in workplaces due to policy or legislation (urine and saliva) were not designed to identify impairment, the supposed safety hazard being targeted, but rather the historical exposure of a drug unfairly prejudicing individuals who rely on prescription medication to maintain functionality and quality of life.

  2. This is not uncommon for blue-collar workers with demanding jobs who often acquire illnesses or injuries during their work life. This member’s case exemplifies the underrepresented gulf of workers who have needs greater than the able-bodied individual, but less than those captured by existing definitions and so do not get adequate protections in the workplace. Particularly where the injury or illness is sufficient to warrant termination of employment.

  3. While the review items proffered in relation to the definition of disability and adjustments will assist, the AMWU also proposes reversing the onus of proof such that persons controlling a business or undertaking must demonstrate that a worker taking prescribed or over-the-counter medication in accordance with doctor/packet (over the counter) instructions, poses a genuine risk if the worker is carrying out the inherent requirements of the job.

Q45. How could compliance with and enforcement of the Disability Standards be improved?

  1. The AMWU has considered the possible options proposed to increase the AHRC’s enforcement powers, being:
  • apply to a court for civil penalty orders and injunctions;
  • issue compliance notices.
  • enter into enforceable undertakings.
  1. While this is a start, the AMWU urges the review to consider the need to furnish the AHRC with necessary funding to be able to hear and determine complaints arising out of the workplace without the need for Court intervention by vesting the Commission with jurisdiction to order penalties and damages. Presently wait times for a conciliation are upwards of 12 months, by which time, the employment relationship has often

ceased rendering substantive prosecution in the Federal Court unavailable without injunctive relief.

  1. To adequately address complaints related to discrimination in the workplace, the AMWU has identified that resourcing must be equal to or greater than that attributed to, for example, the Personal Injuries Commission (‘PIC’) in NSW, which is equipped to convene conferences and determine matters within a year. Additionally, the PIC, where necessary, can list expedited preliminary conferences within fourteen days of an application’s lodgement.

  2. Further, the jurisdictional gatekeep regarding the continued employment relationship must be reviewed. If a worker is discriminated against at work, it is common for termination of employment to have occurred or follow, whether by resignation or dismissal. This leaves aggrieved persons in purgatory as they must seek injunctive relief under s 46PP of the Australian Human Rights Commission Act 1986 (Cth) for an indeterminate amount of time, as is the case in Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331. The AMWU’s member, Mr Millar, had to wait two years for a conciliation to be convened.

  3. The Federal Court granted an injunction reinstating him on unpaid leave while he waited; however, the AMWU considers the process to be unnecessarily protracted and a cause of significant distress for vulnerable workers. During this time Mr Millar was unable to take up other employment, living on savings. While his unique financial circumstances allowed for this, it reflects an outlier to the norm.

  4. This is a flawed approach to protecting the interests of persons discriminated against in the workplace. The AMWU notes from experience in Fair Work jurisdictions that as time lapses during litigation, the confidence and trust between parties deteriorates, putting the remedy of reinstatement into question for Mr Millar and workers like him. If the purpose of this review is to identify areas to improve quality of life for people living with a disability in the workplace, the AMWU presses this flaw as a high priority issue to be resolved.

  5. As a final comment on the current procedure for prosecuting disability discrimination complaints the AMWU suggests that the AHRC replicate the lose-lose legal costs model available for sexual harassment complainants. This would break down barriers to justice by allowing more individuals to raise issues of discrimination without fear of financial ruin if the complaint is unsuccessful.

Conclusion

  1. In summary, the AMWU is supportive of the changes recommended by the DRC and the proposed changes the subject of this Review. Having access to adjustments at work

in addition to the creation of the positive duty will allow workers with disabilities to participate with greater dignity and respect. The AMWU is grateful for the Attorney-General’s Department’s engagement with relevant stakeholders on this review and eagerly awaits the conversion from proposed amendments to new law and policy.