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Resource Paper: Disability Standards under the Disability Discrimination Act: Employment Issues

Submissions in response to this paper are requested by 30 January 1996

Submissions should be addressed to the Disability Discrimination Commissioner, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney NSW 2000; or through one of the other members of the

Sub-committee, listed in this paper.

CONTENTS

PART 1: GENERAL ISSUES

I. Introduction

2. Purposes for DDA Standards

2.1 Certainty and clarity to rights and obligations under the DDA

2.2 Timetables and deadlines for meeting different requirements of the DDA

3. Limitations of possible Disability Standards under the DDA

3.1 Restriction to employment and not other economic relationships

3.2 Restriction to people with a disability as defined in the DDA

3.3 Restriction to discrimination issues

4. Impact of DDA Standards on existing DDA rights and obligations

4.1 Compliance with DDA Standards would prevent liability under the DDA

4.2 Major reductions or increase in existing rights and obligations should be avoided

4.3 How can a floor and a ceiling be set to take proper account of all situations

4.4 Does size matter?

4.5 Existing exemptions under the DDA do not apply automatically

5. Place of "unjustifiable hardship" within DDA Standards

5.1 Nature of benefit or detriment likely for any persons concerned

5.2 Effect of the disability of a person concerned

5.3 Financial circumstances of employer and estimated cost of adjustment

5.4 Action plans

6. Reasonable accommodation or adjustment

6.1 Level of adjustment required

6.2 Types of reasonable adjustment

6.3 General requirement of reasonable adjustment as an element of non-discrimination

6.4 Pre-existing disabilities and disabilities acquired during employment

6.4.1 Discrimination unlawful however and whenever the disability was acquired

6.4.2 Work-acquired disabilities may attract wider obligations under other laws

6.4.3 When and how a disability was acquired may affect the extent and type of reasonable adjustment required

6.4.4 Transfer or re-assignment to another position as reasonable adjustment

7. Impact on State and Territory anti-discrimination laws and other related laws

7.1 Anti-discrimination laws

7.2 Unfair dismissal laws

8. Review, monitoring, information and education

8.1 Monitoring and review of DDA Standards

8.1.1 Monitoring and review by HREOC

8.1.2 Monitoring and review by other agencies

8.1.3 Sunsetting

8.2 Information, education and promotion

9. Reporting procedures or other administrative provisions

PART II: SPECIFIC ISSUES

10. Job information and advertising

10.1 Advertising and generally available information

10.2 Provision of information in accessible form on request

10.3 Accessible means of contact to request job information

10.4 Information through employment agencies

10.5 Discriminatory material in job advertisements or information

10.6 Information on equal opportunity rights

11. Application forms

11.1 Format in which applications can be made

11.2 Information required by application forms

12. Interview or Selection Procedures

12.1 Interview arrangements

12.1.1 Accessible venue

12.1.2 Equally accessible interview process

12.2 Administration and content of tests

12.3 Selection criteria and qualification standards

12.3.1 Inherent requirements and competency based assessment systems

12.4 Pre-employment Medical Examinations

13. Harassment

14. Terms and conditions of employment

14.1 Wage and salary rates

14.2 Work performance standards

14.3 Range and content of duties required

14.4 Conduct and attendance requirements

14.5 Occupational health and safety requirements

14.6 Equipment and facilities provided for performance of work

14.7 Work environment and associated facilities

14.8 Leave entitlements

14.9 Workers' compensation entitlements

14.10 Superannuation entitlements

14.10.1 Effect of existing superannuation and insurance exemption

14.10.2 Reduced entitlements as a result of prior discrimination

14.10.3 Exclusion or limitations regarding a particular disability

14.10.4 Relationship to Superannuation Guarantee Act

14.10.5 Relationship to employment decisions

15. Access to opportunities for promotion, transfer or training

15.1 Accessibility of training

15.2 Additional training as a form of reasonable adjustment

16. Other benefits or detriment associated with employment

17. Dismissal

PART 1: GENERAL ISSUES

I. Introduction

The Disability Discrimination Act ("the DDA") provides for the Attorney-General to make "Disability Standards" (subject to approval or amendment by Federal Parliament).

The main purpose of DDA Standards would be to make rights and obligations under the DDA clearer and easier to understand, enforce and comply with.

DDA Standards could do this by:

- setting out in more detail how the requirements of the DDA apply to particular issues in employment;

- giving more detailed definition to concepts which the DDA either does not define, or only defines in general terms; and

- setting out more detailed criteria to guide key decisions in complying with the DDA (for example, deciding what changes to work related practices or facilities may be required as reasonable adjustment).

DDA Standards in the employment area could therefore have benefits for employers as well as for people with a disability.

This Resource Paper (and a shorter Discussion Paper covering the same issues) have been produced by the DDA Disability Standards Employment Sub-Committee. The Sub-Committee includes representation from the Australian Chamber of Commerce and Industry, the Council for Equal Opportunity in Employment, the Australian Council of Trade Unions, Disabled People's International (Australia), the National Coalition for Development of DDA Disability Standards, the federal Department of Industrial Relations, the federal Attorney-General's Department, the Victorian Equal Opportunity Commission (on behalf of State and Territory governments) and the Disability Discrimination Commissioner.

The Attorney-General has asked the Sub-Committee to provide advice on development of DDA Standards in the employment area.

This paper does not pre-empt any decisions by the Attorney-General on the substance of possible Standards or on further consultative processes before any Standards are made.

The Sub-committee has decided to release this paper for a six month period of comment and consultation. Following this, the Sub-committee will consider preparing a draft Disability Standard, if comments received indicate sufficient need and support for this, to be released for a further 6 month period of comment and consultation before submission to the Attorney-General.

What issues any such draft Disability Standard covers depends on what comments are received. A Disability Standard would not necessarily cover all issues under the DDA. Some issues could be left to be covered by the existing provisions of the DDA, either indefinitely or pending introduction of Disability Standards on other issues in stages.

This paper is intended to assist interested parties in considering issues which relate to possible DDA Standards in the employment area, so that the Sub-committee can provide appropriate advice to the Attorney-General. Proposals put forward in this paper are included simply to promote discussion; they do not represent any final decision by the Sub-committee or any of its members.

This paper discusses some general issues about possible DDA Standards in the employment area. It then goes on to discuss specific employment issues and how DDA Standards might apply to these issues.

In each area covered by this paper, suggested issues for consideration and comment are presented, together with some discussion of these issues to assist in forming views and making comments. Comments are also welcome regarding any issues, relevant to possible DDA Standards in relation to employment, which this paper has not raised.

Because the length and complexity of the discussion needed on many of the issues in this area has made this paper a large one, a shorter Discussion Paper is also being issued at the same time as this Resource Paper.

Submissions in response to this paper should be provided to the Sub-committee by 30 January 1996, through:

The Disability Discrimination Commissioner

Human Rights and Equal Opportunity Commission

GPO Box 5218

Sydney NSW 2000

or through one of the other members of the Sub-committee.

 

 

 

 

 

2. Purposes for DDA Standards

Issue for discussion:

Should DDA Standards relating to employment be introduced?

The Sub-committee's view is that the main purpose of DDA Standards is not to alter the rights or obligations provided by the DDA, to the advantage either of employers or of employees or potential employees with a disability. Rather, the purpose of DDA Standards would be to make existing rights and obligations clearer and therefore easier to comply with and to enforce.

It is important to remember that in discussing possible DDA Standards in Australia we are not starting from scratch. There are already existing rights and obligations in the employment area under the DDA and these rights and obligations will continue in force until and unless DDA Standards covering the same issues are introduced.

2.1 DDA Standards could give more certainty and clarity to rights and obligations under the DDA

The anti-discrimination provisions of the DDA, which are already in force, contain very broad ranging requirements for equality of access and opportunity for people with disabilities.

These provisions do not attempt to deal with each situation in detail. They allow the circumstances of each case to be taken into account, and each decision to be tailored to the requirements of fairness in those particular circumstances.

This flexibility may be needed in relation to some employment issues, given the diversity of employment situations, and the diversity of disability and the impact of disability on individual people in relation to work.

However, this flexible approach also has some disadvantages, in not making clear to all parties, in advance and in detail, what their rights and obligations are.

An important issue to consider in development of any DDA Standards will be when is flexibility more important, and when is certainty and detail more important.

There may be different types of Disability Standard possible, containing more or less detail. Where appropriate, DDA Standards could contain the same or similar flexible and open ended concepts as the existing anti-discrimination provisions. Standards of this kind would not provide a detailed code to follow, but would still be clearer than the existing provisions.

For example DDA Standards could set out more fully the issues and decisions to which employers need to apply these concepts, and the factors which the Human Rights and Equal Opportunity Commission (HREOC) should consider in making decisions on questions such as reasonable adjustment, inherent requirements of the job and unjustifiable hardship.

Issues to consider in this area include:

2.2 DDA Standards could give timetables and deadlines for meeting different requirements of the DDA

Issue for discussion:

Should DDA Standards contain timetables for implementation?

The existing provisions of the DDA create broad ranging requirements to remove barriers to equal opportunity in employment for people with a disability. They do not make clear, however, when employers should have any or all of this process of barrier removal complete and when people with a disability may expect this to have occurred.

On one level, all the obligations and rights provided by the DDA required immediate compliance when the legislation came into force on 1 March 1993. However, many of the obligations and rights under the DDA in the employment area are subject to the "unjustifiable hardship" qualification, and/or equivalent limitations by reference to the "reasonableness" element of indirect discrimination.

Clearly, some adjustments which may involve unjustifiable hardship if required immediately are less likely to involve unjustifiable hardship if required over time. In some cases it may not be feasible to modify premises or equipment to accommodate an employee's disability immediately, but it would be possible to make these adjustments when premises are being renovated or relocated or when new equipment is being installed.

DDA Standards could make clearer what the timelines and trigger points for making changes are, rather than leaving all of these issues to interpretation under the existing provisions.

Issues in this area include:

These questions are discussed in this paper in relation to particular employment issues. Interested parties may also wish to comment on these matters more generally.

3. Limitations of possible Disability Standards under the DDA

Issue for discussion:

What, if any, amendments to the DDA should be considered to deal with present limitations in the power to make Disability Standards? In particular, should DDA Standards be able to cover contract work and other similar arrangements rather than just employment?

3.1 DDA Standards in the employment area can only deal with employment and not other economic or work relationships

The DDA allows Disability Standards to be made about the "employment of people with disabilities". It does not allow for DDA Standards to cover other forms of occupation or business association which do not involve or relate to an employment relationship, such as partnership, franchise or joint venture arrangements, independent contractors, or commission agents.

Voluntary workers, and some holders of elected or statutory positions (such as M.P's or local councillors), are not employees and therefore do not appear able to be covered by DDA Standards in relation to employment. (Some elected officials, however, such as holders of trade union positions, typically are also employees. Likewise, where unpaid work is undertaken as a means of selection for employment - for example job seekers being required to work a week's unpaid "trial" period - then, apart from any issues of the permissibility of such practices under industrial laws, there would be sufficient relationship with employment for DDA Standards to apply.)

However, it is not necessary for there to be a current contract of employment in place for the situation to be covered by the power to make DDA Standards regarding employment. Section 31 of the DDA provides for DDA Standards to be made "in relation to" employment.

This would permit DDA Standards to be made applying to situations which are sufficiently directly connected with employment. In particular, DDA Standards could be made under this power regarding discrimination against persons seeking to become employees, or in benefits afforded by or on behalf of the employer following the end of the employment relationship.

Relationships which involve paid work combined with elements of formal education or training, such as apprenticeships, cadetships, internships or employed articles, would be within the potential scope of DDA Standards in relation to employment.

Such Standards could cover the education or training components of these relationships in the context of terms and conditions of employment, as discussed later in this paper. However, there may also be elements of such relationships, in particular those for which an external organisation such as the Technical and Further Education system has direct responsibility, which would be more appropriately addressed separately (if any Disability Standards are to be applied to these issues) under the power to make DDA Standards regarding education. (Section 4 of the DDA indicates that "education" includes training for the purposes of the DDA.)

3.2 DDA Standards in the employment area can only deal with people with a disability as defined in the DDA.

The existing definition of disability for the purposes of the DDA would also be the definition of disability for the purposes of DDA Standards.

DDA Standards could cover discrimination against people who had a disability in the past, may have a disability in the future, or who are imputed as having a disability, as well as people who in fact do have a disability at present, because all these cases are included within the definition of "person with a disability" for the purposes of the DDA.

However, the power to make DDA Standards currently does not allow for Standards applying to discrimination against associates of people with a disability, such as family members, partners or carers. Associates are not defined as being people with a disability themselves, but are included separately within the DDA.

The existing provisions of the DDA would continue to apply to this area, although the effect of these provisions in relation to associates is not completely clear. Some issues regarding some associates are also covered by the provisions of the Sex Discrimination Act which apply to discrimination based on family responsibilities. The decision of the Australian Industrial Relations Commission in November 1994 on family leave also covers some issues for some associates of people with a disability.

3.3 DDA Standards would be concerned with discrimination issues, not with requiring separate disability employment programs or services.

The DDA is anti-discrimination legislation, intended to apply in all types of employment. It is not welfare or benefit legislation, or concerned with establishing or requiring specific disability programs or services, or principally concerned with regulating such programs.

The power to make Disability Standards is included in the DDA for the same purposes as the existing non-discrimination provisions: ensuring equal access and opportunity in employment for all members of the Australian community.

It therefore does not appear appropriate, or legally possible under the DDA, for a Disability Standard to deal principally or separately with regulating specific employment services and programs aimed at people with a disability. Rather, as with the present anti-discrimination provisions of the DDA, specific disability services in the employment area should be covered by the same provisions which apply to mainstream employment.

Nor could DDA Standards require, as such, the employment of people with a disability, rather than requiring (and confirming and clarifying the meaning of) equal opportunity in employment.

 

4. Impact of DDA Standards on existing DDA rights and obligations

4.1 Compliance with DDA Standards would prevent liability under the existing anti-discrimination provisions of the DDA

Non-compliance with a Disability Standard would be unlawful under the DDA. An action which is done in compliance with a Disability Standard is exempt from the existing anti-discrimination provisions of the DDA.

In this sense, DDA Standards would operate both as a floor and a ceiling to rights and obligations. Potentially, they could either significantly reduce, or significantly expand, the rights and obligations provided for by the DDA.

4.2 DDA Standards should not significantly reduce or increase existing rights and obligations

However, the Sub-Committee's view is that DDA Standards in the employment area should not be used to increase or decrease rights and obligations under the DDA substantially:

As well as being consistent with the substance of the rights and obligations provided for in the DDA, the Sub-committee considers that DDA Standards would need to be consistent with relevant international obligations undertaken by Australia, including under International Labor Organisation conventions. This does not mean, however, that DDA Standards could or should seek to give effect to provisions of these conventions which go beyond the anti-discrimination area covered by the DDA.

4.3 How can a floor and a ceiling be set to take account of all situations?

The DDA clearly provides that a Disability Standard would necessarily be exhaustive of the obligations of employers, and the rights of people with a disability, under the DDA, within the area of operation of the Standard.

Many employers may look to DDA Standards to give a definitive and detailed list of the adjustments required to be made to accommodate any person with a disability - so that they know what adjustments to make, and what adjustments they are not required to make. Similarly, people with a disability may look to DDA Standards to provide a list of entitlements where every person with a disability can point to their own requirements as included, so that there can be no room for argument about whether these requirements must be met.

However, there are difficulties in DDA Standards providing such a code. For example, inappropriately restrictive provisions in DDA Standards could lead to loss of rights for a person with a disability whose requirements could have been met in the particular situation without unjustifiable hardship, and who could therefore have brought a successful complaint under the existing provisions, but whose needs are defined as above the "ceiling" set by Standards.

People could also be excluded whose requirements are uncommon and were overlooked or dismissed in the drafting of Standards even though these requirements could, in the particular case, have been met.

It is important to remember that people with the same or similar disabilities may have very different abilities and experience, and different requirements for any adjustments needed in the workplace or working arrangements to accommodate their disability.

If requirements contained in DDA Standards are inappropriately rigid where flexibility is needed, this could also unfairly deprive an employer, who faces unusual difficulty in meeting these requirements, of the benefit of a possible unjustifiable hardship defence.

As well, such a comprehensive code:

The Sub-committee's view therefore is that DDA Standards should not seek to give a list of the jobs which people with a particular disability can or cannot perform, or a definitive list of the adjustments required to accommodate any person's disability.

There are a number of other approaches which may be more practicable:

1. It may be possible on some issues to identify requirements which all employers must meet and which all people with a disability can expect to be met, regardless of the circumstances, while making clear that other issues are left to more flexible determination case by case, either on the basis of the existing DDA provisions or equivalent flexible provisions in DDA Standards.

This approach is examined later in this paper in relation to specific issues.

2. Alternatively, it may be possible to specify absolute requirements on some issues for employers of a particular size or type: for example, Commonwealth Government employment; or government employment generally; or employers with more than a certain number of employees.

4.4 Does size matter?

Issue for discussion:

Should DDA Standards (generally or on particular issues) apply different requirements to different employers? If so, what categories should be used - for example:

- number of employees in the enterprise;

- number of personnel including contract workers etc as well as employees;

- number of employees or personnel in a particular workplace or work unit rather than the whole enterprise;

- other categories of organisation of work;

- level of payroll, turnover, profit or other figure;

- type of employer, for example Commonwealth Government and others.

The existing unjustifiable hardship provisions of the DDA require HREOC to consider "all relevant circumstances" in determining whether an adjustment would impose unjustifiable hardship. The financial circumstances of the employer are expressly listed as relevant. Employers with larger numbers of employees may also generally have larger financial resources available, and be better able to provide adjustments involving more significant expenditure.

Size of the enterprise may also be more directly relevant:

These issues are relevant to issues of what is "reasonable" for indirect discrimination purposes, as well as to unjustifiable hardship issues.

Larger employers may also be better able to deal with detailed regulatory provisions than smaller employers. A minimum set of more detailed or immediate requirements applying to large employers would give people with a disability more certainty of what they could expect in at least part of the economy, rather than all issues of reasonable adjustment being the subject of discussion, negotiation or argument between each individual and each enterprise.

In the USA, the Equal Employment Regulations under the Americans with Disabilities Act applied to employers with 25 or more employees from one year after the regulations were issued, and to employers with 15 or more employees from two years after that.

The Affirmative Action (Equal Opportunity for Women) Act 1986 applied to employers with 1,000 or more employees from 1987; 500 or more employees from 1988; and 100 or more employees from 1989.

On this basis, if numerical cut-offs are to be adopted in relation to at least some provisions of DDA Standards, a figure of 100 employees might be seen as appropriate (although such a figure could also be seen as too high, or too low, for some purposes).

However, there are also arguments against an approach imposing different obligations for enterprises with different numbers of employees:

Placing more detailed, or more immediate, obligations on larger enterprises, or employers of particular types, may need to be decided in relation to each specific issue, rather than the same response to this issue being applied across all the matters which might be dealt with by Standards.

The Sub-committee does not recommend that DDA Standards should operate so as to give smaller employers a complete exemption from the existing provisions of the DDA. This would involve a significant reduction of existing rights and obligations. If any such exemption can be shown to be justified in particular circumstances, there is provision under section 55 of the DDA for applications to be made to HREOC for temporary exemption from the existing provisions of the DDA. However, in providing for consideration of issues of "reasonableness" and unjustifiable hardship, the existing provisions of the DDA do recognise that smaller or less well resourced employers may have a lower level of obligations than larger or more well resourced employers, and DDA Standards would need to reflect this.

4.5 Existing exemptions under the DDA do not apply automatically to DDA Standards

Issues for discussion:

Should DDA Standards provide for exemptions similar to those provided in Division 5 of the DDA? What if any provision should be made for exceptions regarding:

- "special measures" to achieve equality or address specific needs;

- reasonable distinctions in superannuation and insurance;

- acts done in direct compliance with other laws (and if so, how should these laws be identified);

- acts in direct compliance with a court order or HREOC determination;

- acts directly complying with industrial orders or awards;

- measures reasonably necessary to protect public health regarding infectious diseases;

- anything done in relation to administration of the Migration Act;

- combat and related duties in the Australian Defence Force, and peacekeeping duties.

Should DDA Standards provide for administrative exemptions by HREOC or some other decision maker?

What if any other exemptions or exceptions should be considered?

Division 5 of the DDA contains a number of important exemptions relevant to employment issues. These exemptions cover:

The DDA also provides for temporary (up to 5 years) exemptions granted by HREOC.

These exemptions provided by Division 5 of the DDA are specified (by DDA section 33) not to apply in relation to DDA Standards. This means that any exceptions or exemptions which should apply to matters covered by a Disability Standard would need to be specified in the Disability Standard itself; or else the Disability Standard would need to be designed to operate without needing any exceptions or exemptions.

Similarly, the exceptions provided within the existing anti-discrimination provisions, in relation to unjustifiable hardship and inherent requirements of the job, would not apply to DDA Standards unless these Standards themselves provide for these or equivalent exceptions.

 

5. Place of "unjustifiable hardship" concepts within DDA Standards

Issues for discussion:

What more detailed provision should DDA Standards make regarding unjustifiable hardship decisions, in addition to the present provisions requiring HREOC to refer to "all relevant circumstances of the particular case", including:

- the nature of the benefit or detriment likely for any persons concerned;

- the effect of the disability of a person concerned;

- the financial circumstances and estimated amount of expenditure required to be made by the person claiming unjustifiable hardship;

- any Action Plan lodged by the person claiming unjustifiable hardship.

In particular:

Should DDA Standards list the types of persons included and the type of benefit or detriment to be taken into account?

Are there any types of benefit or detriment which should be specifically included, or excluded, as factors to be taken into account?

What weight should be given to different types or degrees of benefit or detriment?

How likely does a benefit or detriment need to be for it to be taken into account?

How should decisions be made on whether benefit to one person or class of persons outweighs detriment to other persons?

How should evidence of benefit or detriment be related to other factors to be taken into account, such as the financial circumstances or other relevant features of the enterprise?

What provision should be made concerning evidence regarding the nature of the enterprise, the work to be performed and the organisation of work, the nature of workforce planning, labour needs of the business, other business needs, or customer needs, and the impact that the adjustment proposed may have?

Should DDA Standards require that any government assistance or tax deductions available should be considered in assessing financial circumstances and cost?

Should some formula (for example, based on a proportion of the wages of the person or persons benefiting from an adjustment), be included on what (net) costs should be considered an unjustifiable hardship or a reasonable adjustment?

Should DDA Standards contain any provision based on whether costs of adjustment threaten the economic viability of the enterprise or of the position concerned?

Should DDA Standards contain different requirements based on a clearer scale of enterprise turnover, resources or profitability; or continue to refer to these factors only in general terms as in the existing DDA provisions?

Where DDA Standards prescribe a particular result that must be achieved as an absolute requirement, either immediately or within a certain time, by all employers or by specified sizes or types of employer, there is no need for further discussion of issues of unjustifiable hardship. The enactment of such provisions in Standards would, in effect, represent a decision that (1) compliance with the requirements imposed does not involve unjustifiable hardship, and (2) being required to go further than compliance with these requirements would involve unjustifiable hardship.

However, as discussed later in this paper, there may be a role for concepts equivalent to unjustifiable hardship in relation to some issues - that is, where a Standard is not able to prescribe results in detail for all employers in all cases and where some of the flexibility of the existing discrimination provisions therefore needs to be kept.

(Note: Under the existing provisions of the DDA, the unjustifiable hardship limitation is not a general exception. It applies only to issues of adjustments which a person with a disability requires in order to perform the inherent requirements of the job, and to decisions to dismiss, or not to employ, the person because of the need for such adjustments. However, the "reasonableness" element of indirect discrimination, which does apply to all employment issues, is very similar in effect to the concept of unjustifiable hardship. This paper therefore treats concepts of reasonableness and unjustifiable hardship as interchangeable rather than discussing each in turn in relation to each issue.)

One option would be simply to use the same term "unjustifiable hardship" within DDA Standards, and include provisions requiring HREOC to consider the same range of factors in determining issues of unjustifiable hardship under DDA Standards as under the existing DDA provisions.

This would have the advantage of consistency and mean that decisions regarding unjustifiable hardship under the existing provisions of the DDA could be used to interpret DDA Standards (and vice versa to the extent that some issues remain covered by the existing provisions rather than by DDA Standards).

However, this would also mean that (except on issues where DDA Standards set absolute requirements and therefore did not use the concept of unjustifiable hardship) DDA Standards would have some of the same uncertainty in their effect as the existing provisions. Interested parties may therefore wish to consider whether any more detailed tests or criteria can be provided for determining when "unjustifiable hardship" or equivalent should or should not be found.

In determining issues of unjustifiable hardship in relation to the existing DDA provisions, HREOC is required to consider "all relevant circumstances of the particular case", including:

Interested parties may wish to consider what more specific or additional criteria should be provided; and whether any clearer basis for HREOC to weigh up these factors can be provided.

Factors discussed in section 4 of this paper in relation to size, type, or organisation of the enterprise or workplace may be relevant in this area. Other factors could include any effects for the efficiency of the business; business needs of the enterprise; workforce planning issues; customer needs, or impact on the organisation of work.

(These issues may be easier to consider in the context of specific matters, but interested parties may also wish to discuss them at the level of general principles.)

5.1 Nature of benefit or detriment likely for any persons concerned

Under the existing provisions of the DDA, relevant evidence would include benefits or detriment to people including the employer; the person with a disability immediately affected by a proposed reasonable adjustment; any other employees or potential employees with a disability similarly situated; and any other employees, clients, customers or other persons affected.

Clearer provision may be appropriate in DDA Standards of the parties to be considered, the types of impact to be considered and what effect should be given to the interests concerned.

5.2 Effect of the disability of a person concerned

This factor under the existing provisions of the DDA is intended to direct attention to factors such as:

However, it might be desirable for the purpose and effect of this criterion to be made clearer in DDA Standards: in particular, whether there are some effects of a person's disability which should be excluded from consideration (such as effects on customer or co-worker preferences or prejudices); and if so, how these should be defined.

5.3 Financial circumstances of employer and estimated cost of adjustment

Issues in relation to this factor are listed above in "Issues for Discussion".

5.4 Action plans

Provisions of Action Plans may often be of limited relevance to employment issues. Organisations are invited by the DDA to lodge Action Plans in their capacity as providers of services, rather than as employers. However, where an Action Plan has provisions relevant to employment issues, HREOC clearly should consider these.

If DDA Standards require reference to Action Plans in relation to unjustifiable hardship, it appears appropriate also to require reference to any evidence regarding implementation of such Action Plans. Issues of whether DDA Standards should provide for or require submission of equal employment opportunity plans more specifically are discussed later in this paper (section 9).

 

6. Reasonable accommodation or adjustment

Issues for discussion:

Should DDA Standards specifically provide for a duty to make reasonable adjustments?

How should this duty be defined?

Which issues should such a duty apply to?

Should DDA Standards make any separate provision, and if so in what terms, regarding employees who acquire a disability (or whose disability increases in its impact on ability to perform job requirements).

The concept of "reasonable adjustment" or "reasonable accommodation" is central to the operation of disability discrimination legislation. This concept defines how far other parties are required to make adjustments to accommodate differences caused by a person's disability in the way in which he or she performs a task or participates in an activity.

While many people with disabilities require no significant adjustments, for others failure to make reasonable adjustments (to equipment, premises, work routines etc) will exclude them from opportunities for which they are otherwise qualified and for which they may be the best person.

As set out in HREOC's Manual on employment issues under the DDA, the existing provisions of the DDA do incorporate concepts of reasonable adjustment. However, the requirement for reasonable adjustment does not appear clearly and explicitly in the express terms of the DDA. Reasonable adjustment under the DDA at present involves a process of interpretation of a number of separate provisions (including those regarding inherent requirements, unjustifiable hardship, and indirect discrimination). DDA Standards could state the requirement to make reasonable adjustments more clearly.

6.1 Level of adjustment required

DDA Standards could give clearer guidance on what are the extent and limitations of the requirement to make reasonable adjustment.

Options for this would include:

For example, employers (generally or in categories of premises where this is practicable) could be required by DDA Standards to meet the accessibility requirements of relevant Australian Standards and building codes, in circumstances such as new buildings or major renovations, or (for some employers such as the Commonwealth) possibly as a more general requirement to be met within a set period.

If some fixed requirements must be met within a set period, DDA Standards would also need to specify what if any obligations apply before this date is reached. Otherwise the effect of set requirements to be met by set dates would be that there is no obligation to meet these requirements earlier, even where this would have been reasonable and would have been required by the existing provisions of the DDA.

For example, Commonwealth departments might be required to meet specified accessibility requirements either:

6.2 Types of reasonable adjustment

It could also be possible to specify types of reasonable adjustment which must be considered. This could provide a checklist for employers, people with a disability, advocates, unions, and other parties such as industrial tribunals, including when considering awards or enterprise agreements as well as when employment decisions are being made in practice.

Types of adjustment to be listed might include:

Purposes for which reasonable adjustment might be specified to be required could include:

However, it might be difficult to provide a comprehensive list of all types of reasonable adjustments which could be needed, and circumstances in which they are, and are not, required to be provided. Care would be needed in design of any provisions of DDA Standards in this area that some people with a disability do not have their requirements unfairly excluded by such a list, and that employers are not given a false sense of certainty by a list which appears to state their obligations comprehensively but does not. If adjustments of types, or for purposes, other that those to be listed are required (that is, if the list is not exhaustive), this should be made very clear.

6.3 General requirement of reasonable adjustment as an element of non-discrimination in all areas

An alternative, or additional, approach to DDA Standards specifying particular requirements for reasonable adjustment would be to provide more generally that reasonable adjustment is required as one of the elements of non-discrimination in each of the areas of employment covered by the DDA. This would have the advantages for people with a disability of:

For employers there could be advantages in this approach, through such a provision reducing some of the complexity and uncertainty of interpretation and application of the present indirect discrimination provisions (in relation to some or all issues).

6.4 Reasonable adjustment regarding pre-existing disabilities and disabilities acquired during employment

6.4.1 Discrimination because of a disability is unlawful however and whenever the disability was acquired

The definition of disability for the purposes of the DDA does not differentiate between disabilities according to when or how they are acquired. Rights and obligations under the existing provisions of the DDA apply to people whose disability:

This clearly does not mean that how and when a person acquires a disability must be treated as irrelevant to all rights and entitlements. For example, a person whose injury and acquisition of disability is not work related cannot claim that the DDA requires that he or she have access to workers' compensation payments: his or her ineligibility for such payments is not based on disability discrimination but on the unrelatedness of his or her injury to work.

6.4.2 Work-acquired disabilities may attract obligations under other laws which go beyond the DDA

Employers are likely to have obligations beyond those provided by the DDA regarding accommodation of disabilities acquired in the course of employment, under workers' compensation and occupational health and safety laws as well as under common law duties. The existing provisions of the DDA do not displace these obligations and it is not proposed that DDA Standards should do so.

6.4.3 When and how a disability was acquired may affect the extent and type of reasonable adjustment required in practice

A person who acquires a disability while at work or during the period of employment will, obviously, have a different level of experience with his or her disability compared to a person who has had a disability for a longer period, and may have less knowledge of solutions to work-related issues arising from the disability.

These do not appear to be sufficient reasons, however, for DDA Standards to include separate provisions in relation to disability acquired during employment. When and how a disability is acquired is only one of many reasons why skills and knowledge in dealing with disability vary between different people with a disability. It does not appear practical or desirable to deal with each of these situations by separate and specific provision, rather than by ensuring that any provisions apply appropriately to people with a disability acquired during employment as well as people with a pre-existing disability.

However, it may be argued that there are some areas where issues of reasonable adjustment are different in kind, not only in degree, as between people with a pre-existing disability and a disability acquired during the employment period.

6.4.4 Transfer or re-assignment to another position as reasonable adjustment

In particular, there appears to be no obligation for an employer to consider a person with a pre-existing disability for a position which he or she could perform but has not applied for, rather than for the position which he or she has applied for but cannot perform because of that disability. It may be argued, however, that reasonable adjustment for a person who becomes unable to perform his or her existing job may include transfer to a job, or re-assignment to duties within the existing job, which he or she can perform.

"Job reassignment" is recognised as a form of reasonable adjustment under the Americans with Disabilities Act and the associated Equal Employment Opportunity regulations, where there is a vacant position of which the person is able to perform the duties with or without any other reasonable adjustment. It is less clear that job reassignment is required, at least as broadly as under the U.S. legislation, as a reasonable adjustment under the DDA.

A person may be dismissed without unlawful discrimination under the DDA if he or she cannot, because of disability, perform the inherent requirements of "the job" even with any reasonable adjustment necessary being provided. Reasonable adjustment, in this area, covers any adjustments which do not impose unjustifiable hardship and which are required to enable the person to perform the inherent requirements of the job concerned.

It is difficult to see, therefore, how reasonable adjustment under the DDA could include requiring an employer to continue to employ a person, who cannot perform the inherent requirements of the job concerned, in a different job, whether this is an existing job which is vacant, or a new job, such as a "light duties" job constructed out of some of the duties of the job concerned, or comprising different duties. A complaint of discriminatory dismissal by someone who simply cannot perform the inherent requirements of the job concerned would fail for that very reason under the existing provisions of the DDA.

(These are different issues from job modifications to accommodate a person who remains able to perform the inherent requirements of the job. Also distinct, and considered in section 14 of this paper, dealing with terms and conditions of employment, is whether a change in the inherent requirements of a job in a way that disadvantages a person with a disability, is itself capable of constituting unlawful discrimination under the DDA.)

Exceptions to this apparent lack of a general duty under the DDA to re-assign a person to another position or other duties might be:

DDA Standards might clarify issues in this area. Before specification of any obligations regarding reassignment or transfer (temporary or permanent) as a form of reasonable adjustment, a number of issues would require consideration by interested parties, including:

Reasonable adjustment issues are discussed further in the sections of this paper dealing with specific employment issues.

 

7. Impact of DDA Standards on State and Territory Anti-discrimination laws and other related laws

Issues for discussion:

How far (and how) should DDA Standards seek to preserve the operation of State or Territory discrimination laws on the same subject matter, or replace these laws?

Should DDA Standards make any provision about the interaction of the DDA with unfair dismissal laws?

7.1 State and Territory discrimination laws

The Federal Constitution provides that where a Federal law is inconsistent with a State law on the same matter, the State law ceases to operate to the extent of the inconsistency.

The existing anti-discrimination provisions of the DDA are intended to operate concurrently with any provisions of State or Territory laws which are capable of operating alongside it.

Requirements in a Disability Standard would certainly bind employers regardless of any exceptions or exemptions provided under State or Territory law. It is possible that exceptions provided by DDA Standards in favour of employers would also limit the effect of State or Territory laws which did not provide the same exceptions.

This effect on State or Territory equal opportunity laws by DDA Standards could mean that laws which people expect to be able to rely on, and which are more favourable to them, are effectively struck down, whether intentionally or not.

However, if (as recommended by the Sub-committee) DDA Standards in the employment area essentially reproduce the same effect as the existing DDA provisions (only more clearly and accessibly), then any State and Territory laws invalidated by Standards could already be liable to be found inoperative because of inconsistency with the DDA.

Thus there are issues in this area of how to ensure (and whether it is possible to ensure) that DDA Standards do not affect rights and obligations under State and Territory discrimination laws.

Interested parties may also wish to discuss whether this is a desirable result, or whether establishment of a single legal regime (within the area covered by a Disability Standard) rather than the current multiple laws could have benefits for employers, people with a disability, advocates or governments.

7.2 Unfair dismissal laws

One of the reasons why a dismissal may be found to be unfair is if it is discriminatory.

The Federal Industrial Relations Act 1988 explicitly covers discriminatory dismissal because of disability, although the definitions it uses are not precisely the same as the definitions in the DDA. Following amendments to the Federal Industrial Relations Act which took effect from March 1994, this Act contains a number of provisions designed to assist in preventing and eliminating discrimination on a number of grounds, including disability. In particular, this Act prohibits unfair termination of employment because of disability, and the AIRC is not to certify or approve the implementation of an agreement if it contains a provision which discriminates against an employee because of disability (subject to some exemptions, in particular in relation to inherent requirements). In addition, the AIRC must take account of the principles of the DDA and must review all awards every three years to remove discrimination.

Issues of disability discrimination may also arise under State and Territory laws on unfair dismissal.

At present, these laws operate alongside the existing provisions of the DDA. That is:

It is not likely that the existing provisions of the DDA would be found to displace State or Territory laws on unfair dismissal, even where these apply to discrimination issues and even where they provide a higher, or lower, level of rights and obligations. The Federal Parliament clearly did not intend to "cover the field" of unfair dismissal comprehensively by legislating about discrimination. Employers therefore need to comply both with applicable unfair dismissal laws and with the DDA and other discrimination laws.

It might be simpler to have only one system of rights, obligations and procedures to deal with in this area. However, unless the Federal and each State and Territory industrial relations system provided for substantially the same rights and obligations as the DDA (which might require significant changes to at least some of those systems), any provision in DDA Standards to achieve consistency between the DDA and industrial relations laws would seem necessarily to involve substantial change in the rights and obligations provided for under the DDA. As indicated earlier in this paper, the Sub-committee does not recommend that DDA Standards should do this.

There may, however, be other provisions which DDA Standards could make to clarify the relationship between industrial relations laws and the DDA. Comments are invited in this area.

(Issues regarding possible provisions of DDA Standards regarding dismissal are discussed in section 17 of this paper.)

8. Review, monitoring, Information and education

Issues for discussion:

Are HREOC's existing functions and resources sufficient for monitoring and review of DDA Standards?

Should more specific reporting requirements be provided?

Should monitoring and reviewing functions be specified for bodies other than HREOC?

Should DDA Standards in the employment area be subject to a sunset clause to ensure review? If so, what period should be provided?

Should DDA Standards provide for, or be accompanied by, specific information, education or promotional programs? If so, what should the nature of these programs be and who should conduct them?

8.1 Monitoring and review

Some representatives of interested parties have expressed interest in ensuring that there are appropriate arrangements for review and monitoring of DDA Standards, to ensure that any mistakes or omissions in Standards as originally adopted are addressed; Standards do not operate in practice to undermine existing rights or impose undue compliance costs; and that Standards do not become outdated with changes in work organisation or technology.

8.1.1 Monitoring and review by HREOC

HREOC has a function under the DDA (section 67(1)(e)) of monitoring the operation of DDA Standards and reporting the results of such monitoring to the Attorney-General.

HREOC would rely on its existing powers and resources for this purpose, unless DDA Standards were accompanied by additional powers or resources. (It is not clear that DDA Standards themselves could provide for powers or functions of monitoring or review, rather than these powers and functions being specified in the DDA itself.)

The monitoring mechanisms presently available to HREOC include use of information gained in the course of dealing with complaints of non-compliance with DDA Standards, and HREOC's existing consultative and advisory mechanisms.

Interested parties may wish to comment on whether the functions and resources presently provided for HREOC under the DDA are sufficient provision for review and monitoring of DDA Standards, or whether DDA Standards should be accompanied by further provision in this area.

In particular, parties may wish to comment on whether HREOC's reporting function should be made more specific, including:

8.1.2 Monitoring and review by other agencies

In the United States, monitoring and review of regulations under the Americans with Disabilities Act is not the responsibility of any one agency. There are overlapping responsibilities between the Department of Justice (which has general responsibilities regarding enforcement and administration of civil rights legislation including the ADA), and government agencies with responsibility for particular areas such as the Equal Employment Opportunity Commission or the Department of Transportation. The National Council on Disability (an independent federal agency of 15 members appointed by the President and confirmed by the US Senate) also has responsibility for reviewing and evaluating Federal programs concerning people with a disability, and has decided to issue an annual report to the President and to Congress on the implementation of the ADA.

Interested parties may wish to consider whether monitoring or reviewing roles should be specified for Federal agencies or other bodies regarding DDA Standards.

8.1.3 Sunsetting

One method which has been adopted in other contexts for ensuring that review of regulations occurs is "sunsetting", by which legislation ceases to have effect on a specified day or after a specified period of operation, and needs to be re-introduced afresh if it is to continue past that date.

Queensland and South Australian State legislation provides for a general seven year sunset period for all delegated legislation (that is, regulations, by-laws etc). New South Wales and Victorian legislation each provide for a number of sunset dates for older delegated legislation, and a general five and ten year period respectively for more recent delegated legislation.

The Administrative Review Council, in its report Rule Making by Commonwealth Agencies, accepted arguments that a five-year sunset period could be too short and impose an unmanageable administrative burden on rule-making agencies. It recommended a ten year sunset provision for new "legislative instruments". (However, a shorter time for review, such as the three years provided in effect by section 47(3) of the DDA for review of discriminatory laws, might be more workable where only one Standard or a small number of Standards needs to be reviewed, rather than the whole body of Commonwealth delegated legislation, which is what this report was considering.)

The Commonwealth Government did not accept this recommendation, and did not include a sunsetting provision in the Legislative Instruments Bill which was introduced in response to the Administrative Review Council report.

Although the government has rejected a general sunsetting requirement for Commonwealth delegated legislation, interested parties may wish to consider whether a sunsetting requirement specifically applicable to a Disability Standard would be appropriate.

Advantages of sunset requirements include:

Disadvantages, or limitations, of sunset provisions may include:

8.2 Information, education and promotion

HREOC has functions under the DDA regarding information and education programs for the purpose of promoting compliance with the DDA (although performance of these functions is limited by resources and by other responsibilities and priorities). These functions would also apply to promoting compliance with DDA Standards.

Interested parties may wish to comment on:

9. Reporting procedures or other administrative provisions

Issue for discussion:

Should DDA Standards, or amendments to the DDA, provide for any additional administrative requirements such as regular reporting or provision of equal opportunity plans to HREOC (or other authority or authorities)?

The principal enforcement mechanism for DDA Standards, and source of information for use by HREOC in monitoring their operation, would be the same as for the existing provisions of the DDA: that is, through complaints to HREOC by or on behalf of persons who are aggrieved by allegedly discriminatory actions.

Interested parties may wish to consider whether any additional administrative provisions, to be applied either to all employers or to particular categories of employment, should be specified in DDA Standards (to the extent that this is possible) and/or included in regulations under DDA section 132 or possible amendments to the DDA.

Such provisions might include:

As noted earlier in this paper, the Sub-committee's view is that DDA Standards should not seek to make substantial changes in the level or extent of rights and obligations which are stated or implicit in the existing provisions, rather than clarifying and removing uncertainty in the effect of these provisions.

Specification of additional administrative provisions may not necessarily be inconsistent with this position, as such provisions could be seen, similarly with other possible provisions of DDA Standards, as means of promoting compliance with existing obligations rather than as imposing new substantive obligations.

However, this same point may mean that any such provisions should be included (if at all) in amendments to the DDA, or by regulation, rather than in DDA Standards.

Non-compliance with a Disability Standard is an unlawful act under the DDA, while compliance with a relevant provision of a Disability Standard is a complete defence to a complaint of an unlawful act under the existing provisions. Each of these factors indicates reasons why reporting requirements or requirements to lodge equal opportunity plans or policies might not be appropriate to include in DDA Standards (and thus should be provided for by amendments to the DDA or by regulation if at all):

Arguments for including provision for equal opportunity reports regarding disability, and/or lodgment of equal opportunity plans, might include that:

Arguments against such provisions might include that:

- the DDA is anti-discrimination legislation, not affirmative action legislation;

- requirements to prepare and lodge plans and/or regular reports might impose substantial costs on employers, as well as on the Commonwealth in resourcing HREOC or other appropriate authority to receive and assess these reports or plans;

- preparation of such plans and reports may become the focus of efforts and attention by enterprises at the expense (in terms of management time and of financial and other resources) of substantive implementation of and compliance with non-discrimination requirements in DDA Standards or in the existing DDA provisions;

- substantial reporting, planning or other administrative requirements may make employment of, and non-discriminatory practice concerning, people with a disability appear (particularly to small businesses) significantly more difficult and expensive than would otherwise be the case, and may accordingly act as a barrier to employment.

Interested parties may wish to comment on these issues, including by reference to any experience regarding the effectiveness and workability of existing reporting requirements (such as those under the Affirmative Action (Equal Opportunity for Women) Act) and EEO policy and planning requirements (for example, those applicable in the Commonwealth public sector, or contract compliance requirements applicable under Victorian government policy to organisations delivering contracted services on behalf of government).

As already stated in this paper, it is not clear that reporting requirements can be included in DDA Standards, and it may be argued that such requirements would represent a substantial increase in obligations. Discussion of these issues in this paper is included only for the purpose of promoting informed consideration of an area which was raised strongly in consultations prior to the introduction of the DDA. This discussion does not represent any decision or recommendation that legislative amendments to provide for reporting requirements should occur.

PART II: SPECIFIC ISSUES

In the rest of this paper the Sub-committee will set out more specific areas and issues where DDA Standards may make rights and obligations under the DDA clearer, together with some proposals on how this might be done.

A major purpose of this paper is to facilitate comment from interested persons and organisations on whether these or other issues are appropriate for development of DDA Standards.

As indicated earlier, the Sub-committee's view is that DDA Standards in the employment area should not significantly reduce or increase the legal rights and obligations presently contained in the DDA, but make these rights and obligations clearer and easier to apply.

Each aspect of employment covered by the DDA needs to be considered to determine:

(1) what existing rights and obligations there are under the DDA;

(2) whether DDA Standards could set out equivalent rights and obligations more clearly.

Section 15 of the DDA makes disability discrimination unlawful by an employer (or a person acting or purporting to act on behalf of an employer):

Section 35 of the DDA makes it unlawful for an employer or co-worker to harass an employee or person seeking employment in relation to his or her disability, and section 36 makes similar provision regarding harassment of current employees.

These provisions present a very wide range of issues covering the whole of the employment process.

Issues at the commencement of employment

This second part of this paper starts with issues which arise at the start of employment: that is, in "the arrangements made for the purpose of determining who should be offered employment" and in "determining who should be offered employment".

Issues here include job advertising; application forms; selection procedures; job requirements; and medical checks. Issues of adjustments to accommodate a person's disability may also arise at this stage, as well as at other stages throughout the employment process. Similarly, issues of harassment may arise at the commencement of employment as well as in the course of employment.

Issues arising in the course of employment

This paper then goes on to discuss issues which may arise in the course of employment regarding an employee who has, or acquires, a disability. These issues are dealt with by DDA section 15 regarding discrimination "in the terms or conditions of employment"; in "access to opportunities for promotion, transfer or training, or to any other benefits associated with employment" and discrimination "by subjecting the employee to any other detriment". Harassment of a person because of his or her disability constitutes discrimination under DDA section 15, and is also separately cover in DDA section 36, and is discussed in this section of the paper.

Issues arising at the end of employment

The DDA makes it unlawful to discriminate against a person on the basis of disability by dismissing him or her. This is subject to a number of limitations, including in relation to cases where the person is unable to perform the inherent requirements of the job, or requires adjustments which would impose unjustifiable hardship in order to perform those requirements. The paper discusses the operation of these existing provisions, and issues in this area which might be addressed by DDA Standards.

Also discussed are issues regarding equal access to benefits arising at the conclusion of employment, including in relation to redundancy.

One approach for DDA Standards would be simply to specify each of the areas of employment required to be covered, and to provide that in these areas employers must avoid discrimination against people with a disability, including by making any reasonable adjustments necessary (with appropriate definitions of what "discrimination" and "reasonable adjustment" mean for these purposes).

Alternatively, more detailed provision could be made issue by issue.

To determine which of these approaches should be taken, it appears necessary to discuss each employment issue in this area in turn (although this makes this a longer paper than the Sub-committee originally intended).

Issue for discussion:

Are there other issues where DDA Standards should be considered (in addition to those discussed in this paper)?

10. Job information and advertising

Issues for discussion:

How can DDA Standards make rights and obligations clearer regarding non-discriminatory access to job information?

Should DDA Standards contain any specific requirements for employers to advertise jobs in accessible formats and by accessible methods?

What provisions should DDA Standards contain on making other job information available in accessible forms?

Should these provisions apply to all employers, or only larger employers?

Should employers be required to provide information in any form requested by a person with a disability? or only in any form which provides equally effective access?

Under the existing provisions of the DDA unlawful discrimination may occur in a number of ways in job advertising or information.

Direct discrimination occurs if a person with a disability is refused job information because of his or her disability. DDA Standards should either reproduce the right to be free from this form of discrimination, or preserve the effect of the existing provisions in this area.

Note: The "inherent requirements of the job" exception does not apply here. Nor does the "unjustifiable hardship" limitation. A justification for this would be that people with a disability should not be excluded before they have even had a chance to make an application.

However, the "reasonableness" limitation in the concept of indirect discrimination does apply in this area. More complex issues therefore arise regarding indirect discrimination, in the form in which information is available and the means by which it is disseminated.

Where job information or an advertisement is provided in a form which a person with a disability cannot use, the employer (and any employment or recruitment agency acting on behalf of the employer) may be liable for indirect discrimination. In effect, the employer or agency has imposed a "requirement or condition" that job applicants be able to have access to the information in the form provided. A claim of discrimination would succeed unless this requirement could be seen to be reasonable. (A requirement or condition which is reasonable does not involve unlawful indirect discrimination.)

If a person cannot even have access to information that a job is available, he or she clearly does not have equal opportunity to obtain that job.

However, it does not appear feasible to require that all job information be provided in forms equally accessible to all people with a disability. Issues in this respect may vary between advertising and information otherwise generally available to the public, on the one hand, and information provided specifically on request by a job seeker, on the other.

10.1 Advertising and generally available information

Advertising only in a medium such as newspapers would be likely to be held to be lawful under the existing provisions of the DDA on the basis of reasonableness.

Advertising in newspapers as currently published does not provide equal access for some people with a disability. Newspapers are not generally published in formats such as braille, tape, large print or computer disc, or at least are not published in these forms at the same time as they are published in standard print. Given this, it is difficult to see how any employer, even the Commonwealth Government, could provide access to job information for all people with a disability on completely equal terms, other than by being prohibited from using daily newspaper advertising. The Sub-committee considers this would not be reasonable, and that the existing provisions of the Act therefore do not require it, and DDA Standards should not require it.

A Standard requiring publication of newspapers in a range of formats (or providing access through other means such as telephone or computer on line access, as some but not all newspapers now provide) would address this to a large extent. It could be reasonable and practicable to place such a requirement on publishers of newspapers (who would then incorporate the costs of such provision in their overall cost structures including advertising charges to employers), although it would not be feasible or reasonable to place such a requirement on any individual employer.

However, it is not clear that such a Standard (even if feasible in practice) could be validly introduced as a Standard about employment. It would appear rather to be a Standard about provision of goods and services. There is no power to introduce such a Standard under the DDA at present.

Some people with a disability would have difficulty having access to information in newspapers because of difficulty in physically manipulating the pages. It would obviously not be feasible to require all individual employers who wished to advertise a job to provide a reader or page turner for all such people in case any of them wished to apply for the job. This form of assistance therefore would not be the responsibility of individual employers under the existing provisions of the DDA and in the Sub-committee's view could not be required for employers to provide under a Disability Standard.

Requiring each employer to use radio or television advertising would expand the range of people with a disability who would have access to job information. However, the expense of such advertising, and the difficulty of securing radio or television time for all job advertisements, would mean that in many cases requiring such advertising would be unreasonable. The Sub-committee therefore does not recommend that DDA Standards contain any general requirement for job advertisements to be placed on radio and television in addition to print.

There are various specialist organisations and services which (subject to limitations imposed by copyright law) republish newspaper material in various formats so as to be accessible to people with a disability. A Standard requiring employers to provide job information to these services would face a number of problems:

The Sub-committee therefore considers that DDA Standards could not impose any general obligation to advertise jobs in formats other than standard print newspaper advertising.

The position may be different for certain large employers, in particular the Commonwealth government and State and Territory governments. These governments are requested to provide further information on the desirability and feasibility of DDA Standards specifying the means by which government jobs should be advertised. In particular, Commonwealth government employment information might be covered either by a specific Standard on Commonwealth government employment, or as part of a Standard on Commonwealth government information more generally (under the power to make Standards regarding administration of Commonwealth laws and programs).

For employers more generally, progress towards equal access to job information is more likely to be achieved by:

10.2 Provision of information in accessible form on request

Provision of job information when requested by an individual may raise different issues from routinely making this information accessible to all members of the public. For example, it is not feasible to require an employer to advertise in the braille edition of all metropolitan newspapers - because such editions are not available. But providing selection documents in braille when requested by an applicant (where the applicant has found out about the job through some means, such as telephone access to the content of the newspaper) does not present the same problem.

Options here would be:

(1) Specify a requirement to provide job information on request, in whatever format a person with a disability requires it to have equal access to the information. Such requests would generally be relatively inexpensive to meet and therefore may be unlikely to involve unjustifiable hardship in terms of the existing provisions of the DDA, at least for larger or better-resourced employers. While the expense and administrative effort involved in meeting any single request might be more significant for small employers, they would also be likely to receive such requests less frequently. Large employers would receive such requests more frequently, but would be better placed to have efficient routine procedures in place to meet such requests.

(2) Place such a requirement only on larger employers; for smaller employers draft DDA Standards so as to preserve or reproduce the existing obligation to meet such requests when this would not involve unjustifiable hardship.

The requirement here could be either for provision of information in the form requested by the individual; or for provision in any form which provides the person with a disability with equally effective information as is provided for other people. People with a disability will generally have good reasons based on their own experience and needs for the preferred format nominated. However, it may also be argued that in some cases a less expensive or more readily achievable solution would provide access to information equal to that provided to other members of the community. For example, if a person prefers to receive selection documents in braille, but can receive the information by telephone, should provision in braille be required?

10.3 Accessible means of contact to request job information

Issue for discussion:

What, if any, requirements should be specified by DDA Standards for accessible points of contact for job information, either for employers generally or more specifically for particular sizes and types of employer such as the Commonwealth government?

To be effective, access to information on request would need to include a contact point which provides equal access. For example, if only a voice phone number is provided as the contact point to request job information, people who cannot use voice telephones may be excluded.

Standards could require that employers provide a range of means of contact for job information, such as voice phone, TTY (telephone typewriter), and post. However, not all employers have a TTY. Discussion is needed of whether it would be reasonable in effect to require all employers including small businesses to install a TTY and have staff trained in its use. In particular, given the provision of Commonwealth funds to provide a more adequate TTY relay service, when would it remain reasonable or necessary for an employer to provide direct TTY access?

Options on this issue might include: