Human Rights and Equal Opportunity Commission Website

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:

when should DDA Standards contain limitations similar to those in the existing provisions of the DDA, based on "unjustifiable hardship" or "reasonableness", and when should they set more absolute requirements;

whether more detailed provisions than the concept of "unjustifiable hardship" should be used to determine when a particular action is too expensive or unfair to be required of employers or other persons.

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:

which rights and obligations should apply immediately;

which rights and obligations should be met within fixed periods;

which rights and obligations should be triggered by particular events;

which rights and obligations should continue to depend on concepts of reasonableness or unjustifiable hardship or equivalent, rather than being subject to a timetable.

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:

there may be doubts whether substantial changes to the DDA by means of DDA Standards would be legally valid;

the existing provisions of the DDA were themselves the result of consultation and negotiation, and sought to strike a fair balance between the rights and requirements of people with a disability and those of employers and other interested parties;

any points where in practice or in principle the DDA as passed by the Parliament can be shown to have got this balance wrong can be addressed by the ordinary process of the government putting legislative amendments to Parliament rather than needing to be addressed through DDA Standards;

while there may need to be compromises by one group or another on particular issues, DDA Standards are more likely to be adopted if there can be consensus overall between representatives of employers and people with a disability.

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:

would need to be very large and might therefore be difficult to use, for small employers in particular;

would require years of research and consultation to ensure that all requirements and situations had been considered; and

would be likely to be out of date by the time it could be completed, due to continuing changes in technology, work organisation and the experiences and expectations of people with a disability.

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:

in a larger enterprise more people may potentially benefit from an adjustment, which would make the adjustment less likely to involve an unjustifiable hardship under the existing provisions of the DDA;

in a larger enterprise, it may be easier to implement adjustments involving flexibility in working arrangements, such as hours of work, use of leave entitlements, or allocation of duties among employees, than it would be in a smaller enterprise.

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:

numerical cut-off points are to some extent arbitrary and do not necessarily reflect the financial resources of an enterprise, or other aspects of its ability to provide particular adjustments;

in some cases the relevant unit for considering ability to adjust working arrangements may be a smaller team rather than the whole enterprise; or a larger group, such as a group of associated companies or enterprises rather than one single enterprise;

it has been asserted that other requirements which apply to enterprises with more than a fixed number of employees (or level of payroll) act as disincentives to hiring more employees;

if the purpose of DDA Standards is to provide certainty and guidance, it is likely to be small enterprises who are most in need of this, while larger enterprises are likely to be better able to interpret the existing provisions of the DDA for themselves.

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:

"special measures" reasonably intended to provide equal opportunity to people with disabilities or a particular disability, or to meet specific needs of people with a disability;

"reasonable" distinctions in superannuation and insurance;

acts done in direct compliance with any other law (up to 1st March 1996);

acts done in direct compliance with any Federal, State or Territory law prescribed for this purpose by regulations under the DDA;

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

acts directly complying with an order or award providing for productivity related wages for people who would otherwise be eligible for a disability support pension;

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.

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:

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.

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:

what adjustment if any the particular person with a disability concerned requires (rather than decisions being based on generalised assumptions about, or experience concerning, people with a disability);

whether a particular adjustment proposed will be necessary and effective to enable the person to perform inherent job requirements, or to participate equally in whatever other work related activity is in question.

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:

making clear what are the connections between reasonable adjustment and concepts of unjustifiable hardship and inherent requirements;

indicating, or giving a clearer framework for determining, which issues are the responsibility of the employer and which are not (being rather the personal responsibility of the employee or potential employee or of third parties);

providing more guidance on making unjustifiable hardship and/or "reasonableness" decisions (as discussed earlier in this paper regarding unjustifiable hardship generally);

applying some requirements as more absolute standards - either for all employers, or for some employers selected by size or type as discussed earlier.

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:

when occupying new premises; or
when major renovations are performed; or
when this does not exceed some level of difficulty or expense (such as not imposing "unjustifiable hardship" or being "readily achievable") or
in any event by a fixed date.

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:

changes to recruitment and selection procedures;
modifications to work premises;
changes to job design (where these do not alter inherent requirements of the job);
changes to work schedules or other work practices;
modifications to equipment;
modifications to workplace amenities;
modifications to work-related benefits;
provision of training, interpreters, readers, attendants, or other work-related assistance;
permitting the person to use equipment or assistance arranged by him or herself or third parties. (This could be applicable in any areas where it is not the employer's responsibility to provide this equipment or assistance, or (possibly) to the extent that the level of assistance or adjustment required exceeds the level which the employer is required to provide.)

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

to afford equal opportunity to be considered for appointment, promotion, transfer or other work opportunities;
to enable a person to perform the inherent requirements of the job;
to enable a person to comply with any requirements which, although not defined as part of inherent job requirements, must be complied with; and
to afford equality of terms and conditions of employment

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:

confirming that reasonable adjustment is required, and
avoiding any risk of inadvertently excluding any areas or forms of reasonable adjustment.

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:

existed prior to the employment period;
was caused or aggravated by work; or
was acquired during the employment period but without the employer being responsible for this.

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:

where temporary transfer or re-assignment is part of a process of rehabilitation (whether or not included in or connected with a formal rehabilitation program), which it is reasonably expected will enable the person to become capable again of performing the inherent requirements of the previous job;

where the duties which a person is no longer required to perform were not within the inherent requirements of the job; or

where reassignment is or would be provided to people without a disability in comparable circumstances.

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:

the impact of other areas of employment law which may complicate or prevent termination of a "temporary" job reassignment or creation of a modified job;

how far an employee should be able to reject a reassignment as unsuitable;

whether the position to which a person may be transferred needs to be an existing and vacant position.

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:

where a case of alleged unfair dismissal involves issues of discrimination, a complaint may be made either under the DDA (or State or Territory discrimination legislation where applicable), or under the Federal Industrial Relations Act where this applies, or under State or territory industrial laws;

HREOC may decline a complaint where there is another more appropriate remedy available, or where an adequate remedy for the complaint has already been received, but complaints are not automatically declined simply because a complaint has been or could be made under industrial laws;

the Australian Industrial Relations Court applies the terms of the Industrial Relations Act in deciding cases, rather than directly applying the DDA.

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:

whether regular reports should be required, either annually or on some other regular timetable;

whether consultation with interested parties should be required in HREOC's monitoring and reporting functions, and if so in what terms.

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:

they require an active decision by the rule-making agency if the regulation concerned is to continue;

they provide a further opportunity for scrutiny by the Parliament, rather than Parliament's approval being once and for all.

Disadvantages, or limitations, of sunset provisions may include:

they might reduce the degree of long term certainty which could be provided by Standards;

they may not be sufficient to guarantee continuing review through the whole period of operation of a regulation, rather than only as the sunset date approaches.

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:

what information, education, or other promotional programs should be implemented regarding DDA Standards;

what if any additional powers (through DDA Standards to the extent this is possible, or through accompanying regulations or legislative amendments) or additional resources need to be provided for this purpose;

whether HREOC, or other government, private sector or community organisations should be responsible for such programs.

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:

regular reporting requirements comparable to those provided in the Affirmative Action (Equal Opportunity for Women) Act;

provision for lodgment with HREOC or other appropriate authority, of equal opportunity plans or policies regarding people with a disability. Such lodgment could be voluntary (as with Action Plans under the DDA, which may be given to HREOC by providers of services) or mandatory, or a combination of these for different categories of employment.

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):

there would be legal and practical problems in treating a failure to comply with a requirement to lodge an equal opportunity plan, policy or report as an unlawful act in the same way as a discriminatory dismissal or other substantive action. (For example, it is not clear who should be able to complain of such a failure, or whether any of the remedies available through HREOC would be appropriate.)

there may be a danger that compliance with a procedural obligation in DDA Standards, such as to develop or lodge a policy, could displace substantive rights and obligations under the existing provisions. (This would not be consistent with the maintenance of the present level and extent of substantive obligations, unless DDA Standards are developed as a complete code covering all issues and excluding any operation of existing DDA provisions in the employment area.)

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

it would assist in the compilation by HREOC (or other responsible authority) of experience of successes and difficulties in the operation and implementation of DDA Standards (and possibly of the existing provisions), for the purposes of making any appropriate recommendations for review;

such reports or plans could be used to make information on successes and difficulties, in reasonable adjustment and other aspects of non-discrimination, more easily available for use by other employers and by people with a disability;

although the DDA is anti-discrimination rather than affirmative action legislation, elimination of discrimination under the DDA does include a need for active and positive measures to remove discriminatory features (as indicated by the discussion of reasonable adjustment in this paper) as well as a simple refraining from directly discriminatory actions (which, in any event, may require positive measures and policies to eliminate or prevent, for example in relation to harassment);

there is nothing inherent in the concepts of plans, policies or reports to require that these include affirmative action measures, such as quotas or targets, which go beyond the present substantive requirements of the DDA;

a definite, presently applicable requirement (applied to all employers or to all employers in designated categories) to report or to prepare and submit a plan or policy may be more effective in involving many organisations in broad and active efforts to develop non-discriminatory practice than the possibility of a complaint being lodged in future.

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):

in the arrangements made for the purpose of determining who should be offered employment;
in determining who should be offered employment;
in the terms or conditions on which employment is offered;
in the terms or conditions of employment that the employer affords the employee;
by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
by dismissing the employee; or
by subjecting the employee to any other detriment.

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:

it would not necessarily be workable for the organisations and services concerned to republish all such information supplied;

republication of information by such services may improve access to employment information but does not guarantee equal access: republication generally being significantly later than the original publication, and being available through more restricted outlets;

the coverage of specialist information sources varies from State to State and as between urban and regional areas in Australia; and

being required to receive information through a specialist disability service rather than through mainstream sources could itself be seen as discriminatory even if the specialist service delivered the same range of information at the same time as the mainstream sources.

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:

consideration of DDA Standards about the forms of publication of newspapers, to the extent that the DDA now or in future permits such standards to be made;

the Federal Government (in particular the Attorney-General and the Minister for Communications) ensuring that copyright and other laws do not present any unnecessary barriers to the republication of newspaper information in forms accessible to people with a disability;

promotional or explanatory material accompanying the DDA or any DDA Standards on employment encouraging employers to use a variety of job advertising methods to maximise the pool of potential applicants, by including people with a disability;

DDA Standards reproducing, or preserving, the present obligation to disseminate job information in forms and through means accessible to people with a disability where it is reasonable to do so;

more specific DDA Standards being applied only to aspects of job information where this is more practicable, as discussed below.

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:

applying specific requirements to Commonwealth employment; to government employment generally; or to larger employers, and leaving the remainder of employers with the existing DDA obligations or equivalent, that is to provide accessible contact points unless this can be shown to be unreasonable and/or impose unjustifiable hardship; or

applying the same specific requirements for accessible contact points to all employers; or

a Disability Standard simply restating the effect of existing provisions for all employers - that equally accessible contact points for job information must be provided except where this would be unreasonable and/or impose unjustifiable hardship.

10.4 Information through employment agencies

Issues for discussion:

Should DDA Standards on employment cover information provision by employment agencies? Should such Standards apply to all employment agencies alike, or should specific Standards apply to the Commonwealth Employment Service and other Commonwealth programs in this area?

Clearly, private employment agencies and the Commonwealth Employment Service provide important additional sources of information for job seekers, as well as providing recruitment services for employers.

Activities of employment agencies are specifically and separately covered under the DDA. Provision of job information on behalf of an employer would be covered by the employment provisions of the DDA in any case. On this basis, the power to make DDA Standards regarding employment of people with a disability

would appear to include power to make Standards covering employment agencies, at least in their provision of job information.

The Commonwealth Employment Service has additional and more demanding obligations under the existing provisions of the DDA, as an agency administering Commonwealth programs. There is power under the DDA to make standards regarding the administration of Commonwealth programs, and the C.E.S. could therefore be covered by such a standard or by a Standard applying to employment agencies generally. Similarly, services provided by or on contract to the new Employment Services Regulatory Authority could be covered either as Commonwealth programs (to the extent that such services are provided on behalf of the Commonwealth, rather than simply being regulated by the Commonwealth) or by more general provisions in relation to employment.

The existing provisions of the DDA would apply to any discrimination affecting provision of job information to people with a disability, for example:

whether the agency communicates equally effectively with people with sensory or other communication difficulties;

whether the agency's premises are accessible so that people with a disability can enter and use the premises to obtain information;

whether the agency discriminates by refusing or failing to provide job information to people because of disability (which is unlawful except where the person is unable to perform the inherent requirements of the job) or provides information to people with a disability only on less favourable terms than apply to other people (for example where people with a disability are required to disclose personal information which other people are not required to disclose and which does not relate to a person's ability to perform the inherent requirements of the job).

10.5 Discriminatory material in job advertisements or information

Issues for discussion:

Should DDA Standards contain provisions on discriminatory terms in job advertisements and information? If so, what should be permitted or prohibited and how should this relate to inherent job requirements?

The DDA makes it not only unlawful, but an offence, to publish an advertisement indicating an intention to commit an act of unlawful discrimination. In addition to this, terms in job advertisements which exclude people with a disability and which are not justified by the inherent requirements of the job (and/or by other exceptions under the Act) are unlawful under the existing provisions of section 15 of the DDA.

DDA Standards could set this position out more clearly and expressly.

Are there any other provisions which DDA Standards should contain regarding job advertisements and information?

It does not appear possible for DDA Standards to give a complete list of terms in job advertisements which are or are not permitted, as this would depend on the inherent requirements of the particular job.

10.6 Information on equal opportunity rights

Issues for discussion:

Should DDA Standards contain any positive requirements to provide information on rights to equal employment opportunity? If so, what sort of information should be required? Should such requirements apply to job advertisements, or at later stages?

A Disability Standard could require that job information include some information on the rights provided for by the DDA, in particular the right to have reasonable adjustments made and the right not to be discriminated against in selection. This might provide useful encouragement to job applicants with a disability and a useful reminder to persons acting on behalf of employers.

Such information is not expressly required to be included by the present provisions of the Act. However it might be seen as part of the "reasonable precautions" and "due diligence" required by employers if they are to avoid vicarious liability under the Act for discrimination by people acting on their behalf. (U.S. discrimination law [Federal and State] generally requires employers to give employees and applicants notice of rights under these laws.)

Discussion earlier in this paper (section 9) of any administrative requirements, such as to develop or report on equal opportunity plans, is also relevant to issues in this area.

11. Application forms

11.1 Format in which applications can be made

Issue for discussion:

Should DDA Standards contain specific provisions on the form in which job applications can be made? If so, what should these provisions be? Should they apply to all employers, or only employers of a particular size or type?

Requiring job applications to be submitted only in a particular form or format may disadvantage a range of people with a disability: people whose disability affects literacy (either directly or through lack of access to equally effective education, and people whose disability requires communication in formats other than standard print (such as orally - on tape or by phone; in braille; or through a sign language interpreter, in person or through means such as video).

A requirement to submit applications in a standard form or format will involve unlawful indirect discrimination under the existing provisions of the DDA unless this requirement is reasonable.

The existing unjustifiable hardship exception in the DDA does not apply to this issue: it only applies to adjustments which would be needed to enable the person to perform the inherent requirements of the job, not adjustments needed to enable the person to be considered for the job.

The concept of "reasonableness" is likely to have a similar effect under the DDA to the concept of "unjustifiable hardship". However, the existing provisions do not spell this out expressly.

Options for DDA Standards in this area might be:

require all employers to accept and consider equally job applications notwithstanding that an application is made in a non-standard form or format;

require all employers to permit use of alternatives to standard written applications, subject to an exception for unjustifiable hardship (or other equivalent concept);

adopt the first approach for some sizes or types of employer and the second approach for the remainder.

11.2 Information required by application forms

Issues for discussion:

Should DDA Standards contain specific provisions on permitted or prohibited questions related to disability? If so, what should these provisions be?

In particular:

- should any question about disability be permitted as long as it is asked of all applicants?

- should questions about disability be permitted if the question is reasonable; or is for a reasonable purpose; or is not for a discriminatory purpose; or only if the question is strictly necessary?

- should questions about disability be permitted at any stage of the employment process, or only at a particular stage, e.g. once a conditional job offer has been made?

- should DDA Standards specifically permit questions to identify reasonable adjustments needed? If so, when and in what form should such questions be permitted?

- should questions about disability be permitted for the purpose of determining superannuation entitlements, and if so at what stage?

- what if any questions about past history of disability should be permitted, including questions regarding previous workers' compensation claims, and at what stage of the employment process should such questions be permitted?

- for what purposes should information collected be used, and how should confidential information be protected?

(Note: Issues in this area are also relevant to request for information at other stages of selection and employment processes.)

Intrusive requests for personal information in application forms (or at other stages of selection processes) can discourage people with a disability from applying for jobs, from continuing with an application, or from accepting or remaining in a position. Similarly to the impact of questions to women (in particular) about marital status, or concerning intentions about having children, people with a disability may also often be concerned that information requested about disability will be used for discriminatory purposes. These concerns have a substantial basis in the experience of many people with a disability.

Equally, however, it is not in anyone's interests for employers to be denied information needed to determine whether a person can perform inherent job requirements; or to identify and make necessary reasonable adjustments. There may also be other legitimate and necessary reasons for requests for information about disability. If employers are prevented (or believe they are prevented) from getting information to resolve concerns about these issues, the end result may often be that the person with a disability is denied equal opportunity.

Section 30 of the DDA deals with requests for information. This section applies to application forms, although it is not restricted to application forms, and covers other requests for information throughout the employment process.

Section 30 states:

If, because of another provision of this Part (other than section 32), it would be unlawful, in particular circumstances, for a person to discriminate against another person on the ground of the other person's disability, in doing a particular act, it is unlawful for the first-mentioned person to request or require the other person to provide, in connection with or for the purposes of the doing of the act, information (whether by completing a form or otherwise) that persons who do not have a disability would not, in circumstances that are the same or are not materially different, be requested or required to provide.

This provision is not easily understood, and may be open to significantly different interpretations. It does not clearly indicate to employers or applicants what questions are permitted and which questions are not.

Also, a question which is not prohibited by section 30 could still be prohibited by the general anti-discrimination provisions of section 15, if it is not reasonable and has the effect of excluding people with a disability compared to people without that disability.

A further complication is that both section 30 and section 15 need to be read in this area with the exceptions provided in Division 5 of the DDA. The effect of these exceptions in relation to discriminatory questions could be made clearer, and stated more simply, than it is under the existing provisions.

While it would be possible to wait until complaints clarify the effect of the existing DDA provisions in this area, the Sub-committee considers that DDA Standards could assist all parties by making the position clearer and less uncertain.

Options in this area might include:

DDA Standards list permitted purposes and circumstances for questions about a person's disability, and prohibit all other questions about disability; or

DDA Standards list prohibited purposes or circumstances for questions about disability, and permit all other questions about disability.

Particular issues in this area include:

Should any question about disability be permitted as long as it is asked of all applicants?

This would seem to defeat the purpose of the existing section 30 in protecting against over-intrusive questions. It would not be consistent with section 15, since a condition or requirement imposed routinely and uniformly on all applicants may clearly be indirect discrimination if it has the effect of excluding people with a disability. This includes routine questions. DDA Standards therefore should not protect all questions simply because they are asked routinely.

Should questions about disability be permitted if the question is reasonable; or is for a reasonable purpose; or is not for a discriminatory purpose; or only if the question is strictly necessary?

This is an issue of how much margin should be allowed to employers in not getting questions about disability absolutely right before liability is imposed for discrimination. Providing some such margin might be needed to avoid discouraging employers from seeking genuinely necessary information; too large a margin could expose people with a disability to excessively intrusive and irrelevant questioning.

Should questions about disability be permitted at any stage, or only at a particular stage such as once a conditional job offer has been made?

In the U.S.A., the Americans with Disabilities Act and the Equal Employment Opportunity Regulations prohibit any pre-employment questions about whether a person has a disability, or the nature and severity of the disability. Prior to employment, questions are permitted only on "the ability of an applicant to perform job related functions" or to ask an applicant "to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job related functions". (A further exception in relation to medical examinations is discussed specifically later in this paper.)

This provision on pre-employment requests for information on disability is designed to prevent people with a disability being screened out simply because of their disability at the application stage, or interviews being about a person's disability at the expense of providing an opportunity for the person to demonstrate, and the employer to assess, the applicant's suitability for the job.

This approach provides one option for DDA Standards in this area. However, there may be concerns that such a provision would be unduly restrictive of the ability of employers to get necessary information, and that this might also work against people with a disability gaining employment in some cases.

In particular, the U.S. approach may require employers to raise questions in a particular and artificial way, or face liability, rather than raise obvious issues directly. It appears that under the U.S. legislation, to ask "do you need any reasonable adjustment because of your disability" would be a prohibited inquiry, while to ask "can you perform job related functions with or without reasonable adjustment" is permitted. These distinctions may be regarded as excessively technical for employers to comply with, and may have the effect of discouraging necessary discussion of reasonable adjustment issues. It has been reported that legal advice to some U.S. employers recommends avoiding any discussion of disability related issues as a means of reducing the prospects of ADA complaints being made or succeeding. This does not appear to be a desirable result.

Pre-employment discussion of reasonable adjustment, and its potential costs and difficulties, may, in some cases, lead to a decision not to employ the person. However, available experience indicates that in the majority of cases either no adjustment will in fact be required, or the net cost and difficulty of any reasonable adjustment which is required should be small. A recent report on U.S. corporation Sears, Roebuck and Co. indicated that:

fewer than 10% of survey respondents required any type of accommodation. Since this referred only to those who self identified as a person with a disability, it may be that even this figure overstates the percentage requiring any accommodation, since people whose disability was not significant enough in the work context to require any accommodation worth mentioning may also be less likely to self identify as a person with a disability;

the average cost of accommodations was $121;

69% of accommodations cost nothing;

many needs were met by universal design and access rather than by needing to install specific technology for an individual employee.

The result of pre-employment discussion of reasonable adjustment, accordingly, should in most cases be to encourage rather than discourage employment of the person, compared with a situation where the employer cannot (or is led to believe he or she cannot) discuss these issues prior to employment, and therefore remains fearful (in most cases needlessly) that reasonable adjustments will be either impossible or excessively expensive.

Also, reasonable adjustment may take some time to implement, particularly where new equipment or modifications to premises are required, but also in some cases of adjustment to the organisation of work. Particularly where selection processes proceed fairly quickly, and the person is required to commence work with little delay, discussion of reasonable adjustment at the earliest possible point may be needed to ensure that a person is not required to work without reasonable adjustment when he or she first commences work.

Interested parties may wish to consider whether the U.S. legislation offers an appropriate model in this area, or whether a less restrictive approach should be adopted: either by specifying additional particular types or purposes of questions as permitted, or by retaining general exceptions such as that presently provided by section 45 for measures reasonably intended to provide equal opportunity.

Should DDA Standards specifically permit questions to identify reasonable adjustments needed? If so, when and in what form should such questions be permitted?

In particular, it appears necessary at least to permit questions to identify whether a person requires any reasonable adjustments to the selection process itself, at least regarding those matters which cannot reasonably be specified as universal requirements. (For example, while it might be feasible and reasonable to expect a physically accessible interview venue as a matter of routine, at least regarding some categories of employer, it would not appear reasonable or possible to have a sign interpreter available at every interview without being able to establish, by asking, whether an interpreter is required.)

Such questions should be regarded as permitted under the existing provisions of the DDA, by reference to section 45 dealing with "special measures" including measures reasonably intended to provide equal opportunity. As with questions intended to identify necessary reasonable adjustments more generally, options for DDA Standards in this area would include reproducing a similar provision to the existing section 45, or specifying in more detail permitted purposes and forms of question.

Should questions about disability be permitted for the purpose of determining superannuation entitlements, and if so at what stage?

The existing provisions of the DDA appear to permit questions about disability to the extent that this is reasonably relevant to decisions regarding superannuation: either because there is actuarial data regarding people with the disability concerned, which it is reasonable to rely on, and/or it is reasonable to make distinctions regarding superannuation on the basis of the disability.

There seems no reason however to ask or answer questions for this purpose before it is established whether the person is to be offered, or will accept, the job. It may be, therefore, that any questions regarding disability which are for the purpose of determining superannuation entitlements should be permitted only after a job offer is made, or after it is accepted.

What if any questions about past history of disability should be permitted, including questions regarding previous workers' compensation claims, and at what stage of the employment process should such questions be permitted?

Use of a person's history of disability to exclude the person from employment would be unlawful under the existing provisions of the DDA, where the person could have performed the inherent requirements of the job, including with any necessary reasonable adjustments - such as observance of appropriate occupational health and safety procedures.

The prospect of being able to make a complaint if discrimination occurs because of past disability, however, may not be sufficient protection in the view of many people with a disability. If information on past disability is provided and the person does not get the job, it will not always be possible to establish whether this was because of the past disability. People with a disability therefore have an interest in as much protection as possible being provided against unjustified requests for information on past disability being made.

However, it is equally clear that some employers wish to require such information. This is particularly the case regarding history of workers' compensation claims. (Discussion is needed of whether DDA Standards should treat workers' compensation information differently from other information about past disability.)

Under the existing provisions, reasonable requests for information in this area may be protected by the exemption in DDA section 46, which protects reasonable distinctions in the terms on which insurance is offered.

This is not completely clear, however: section 46 refers to decisions made on the basis of information, but does not expressly refer to the collection of such information.

Section 46 also does not give any details of what is reasonable and what is not in this area.

The existing provisions may be seen as leaving employers uncertain on what questions are permitted, and people with a history of disability or compensation claims may not have sufficient protection against unfairly being excluded from consideration for jobs on the basis of this history.

DDA Standards could specify more clearly what is permitted in this area. Further input from interested parties is requested on what standards would be acceptable in this area before the Sub-committee proposes any option.

A particular problem raised with HREOC by some employers is that some State laws appear to require employers to request information on previous work-related injuries from employees before commencement, or be compelled themselves to accept liability for claims relating to these injuries. DDA Standards may need to address this situation, either by permitting questions for this purpose, or by overriding the State laws in question.

For what purposes should information collected be used, and how should confidential information be protected?

Fear that information, which is legitimately required for one purpose, will be used for other, less legitimate purposes, and fear that personal information will not be kept confidential, may discourage some people with a disability from giving accurate information to employers. Improper use or dissemination of disability related information could constitute unlawful discrimination under existing provisions of the Act, depending on the circumstances. DDA Standards could perform a useful role by spelling out requirements for employers in this area more clearly.

Interested parties may wish to consider whether present provisions under the Privacy Act -either the Information Privacy Principles which apply to collection, storage and use of personal information by Commonwealth authorities, or the requirements which apply to holders of Tax File Number related information, offer appropriate models in this respect, or whether there are other appropriate models in existing legislation, policies or guidelines.

12. Interview or Selection Procedures

The existing provisions of the DDA require:

(1) that people with a disability are not subjected to direct discrimination, that is that they are not treated less favourably in relation to selection procedures because of disability; and

(2) that selection procedures do not include any condition or requirement which disproportionately excludes people with a disability and which is not reasonable.

DDA Standards could either:

(1) simply restate this; or

(2) make more detailed provision on what is permitted and required in this area.

The Sub-committee suggests that more detailed provision on some issues in this area may be possible and appropriate.

12.1 Interview arrangements

12.1.1. Accessible venue

Issues for discussion:

What provisions should DDA Standards contain to make rights and obligations clearer on accessibility of interview venues?

Should these provisions require accessibility in all cases, only where requested, only where reasonable, or regarding specified employers?

DDA Standards could require that any interviews be conducted in an accessible venue:

(a) in all cases; or

(b) in any case where this is requested; or

It may be argued that there is no point requiring an accessible interview venue if the employer's premises are not accessible, and hence that any standards should relate to the level of accessibility of work premises rather than dealing separately with interview venues.

Against this, if a person with a disability is able to participate equally in the selection process and demonstrate that he or she is the best qualified person for the job, in some cases at least this may have a significant impact on legal and practical decisions regarding accessibility of the workplace more generally. That is, employers may be more prepared to make adjustments to accommodate a particular person who has been shown to be a valuable potential employee, than to make adjustments because of an abstract obligation to do so.

Moreover, the interview process, if the person with a disability is enabled to participate equally in it, may well identify achievable and affordable means of reasonable adjustment in the job which the employer would not otherwise have been aware of.

Providing an accessible interview venue will in most circumstances be far more readily achievable than ensuring accessibility of every part of the employer's work premises. Failure to do so is correspondingly far less likely to be able to be defended as reasonable under the existing DDA provisions.

It is suggested, therefore, that equal access to any interview venue be required in all cases. Failing this, such a requirement appears appropriate at least for government employment.

Provision of a minimum level of accessibility as a matter of routine, rather than only on request and/or after consideration of factors of reasonableness or unjustifiable hardship, is desirable since:

(a) this provides people with a disability and employers with certainty of what may be expected and what is required; and

(b) it avoids requirements of people with a disability being perceived as unexpected and unwelcome burdens to be avoided if possible (for example by not interviewing the person).

12.1.2. Equally accessible interview process

Issue for discussion:

Should DDA Standards contain specific provisions, and if so what, on methods of conducting interviews?

A person with a disability clearly does not enjoy equal employment opportunity if he or she can attend the interview venue but can not interact with the interviewer or interviewers on equal terms with other people.

The existing provisions of the DDA provide a number of requirements which should be reproduced in, or preserved by, DDA Standards:

- it is discriminatory to refuse to permit a person with a disability to be accompanied by a guide dog, hearing dog, or other trained assistant animal;

- it is unlawful to discriminate against a person with a disability because he or she is accompanied by an assistant, interpreter or reader;

- it is unlawful to discriminate against a person with a disability because he or she uses a palliative or therapeutic device or an auxiliary aid (for example a wheelchair or hearing aid).

These provisions refer to assistance which a person with a disability provides for him or herself.

However, the indirect discrimination provisions of the DDA also require employers, in at least some cases, not only to permit forms of adjustment such as these provided by the person with a disability, but to provide some forms of adjustment or assistance to the person with a disability more actively where this is reasonable.

It may be possible to specify some aspects of the interview process (in addition to basic physical access) as required in all cases, or in all cases for employers of a particular size or type.

Other aspects of the interview process, however, relating to individual requirements of people with a disability, may not be feasible to require as a matter of routine rather than on request. For example, it would not be practical to require a sign language interpreter not only on request but for all job interviews in case an applicant is Deaf - apart from any other reasons, there would not be enough interpreters available to make this possible.

Some forms of adjustment require no or minimal inconvenience or expense and may be possible to require to be provided whenever requested. For example, if a person indicates that he or she needs to lip read, it would appear to be reasonable for the interview room and the interview to be arranged to make this possible. Similarly, it would appear reasonable to allocate a person with a disability an interview time in a particular part of the day where this is requested due to factors such as the particular inadequacy of accessible transport during peak demand periods.

Other forms of adjustment, such as provision of interpreting or other assistance, however, may require more significant expense or inconvenience. Should these forms of adjustment be required to be provided by employers? If so, should they be imposed as absolute requirements (either for all employers or for government and/or large employers) or subject to limitations of unjustifiable hardship; or required up to a set cost figure or other defined limit?

DDA Standards might also indicate any arrangements, equipment or assistance which, although relevant to equal participation in selection processes, remain the responsibility of the job seeker rather than the employer. (Similar issues arise regarding responsibility for equipment, assistance or other adjustments in the course of employment, and are discussed in that context later in this paper.)

12.2 Administration and content of tests

Issue for discussion:

Should DDA Standards contain specific provisions, and if so what, on tests for job applicants?

Like interviews, tests which employers use with the intention of measuring ability to perform the job may have the effect of discriminating against people with a disability: because of the form in which the test is administered, and/or because the test actually measures skills and abilities which are not part of the inherent requirements of the job (or are not otherwise reasonably required).

For example, a written test is likely to disadvantage people whose disability either affects ability to deal with written material or has resulted in educational disadvantage including literacy skills. If ability to deal with written material is not part of the inherent requirements of the job, or cannot otherwise be reasonably be justified as a job requirement, such a test could be found to involve unlawful indirect discrimination under the existing provisions of the Act.

DDA Standards could specify in this area:

what adjustments to the form of tests are required and in what circumstances

whether a test has to be an essential, or only a reasonable, means of assessing ability to perform inherent requirements of the job;

what if any other factors than ability to perform the inherent requirements of the job a test may permissibly include (for example, can a test examine abilities which are desirable but not essential?).

The U.S. Equal Employment Regulations under the Americans with Disabilities Act provide that it is unlawful to use a test which tends to screen out people with a disability which is not "job-related for the position in question" and "required by business necessity".

These provisions may provide a possible model for DDA Standards in this area.

The existing provisions of the DDA also cover, and DDA Standards should cover, situations where a test is applied to people with a disability which is not applied to people without a disability. (For example, the New York Fire Department required female applicants to meet certain standards of fitness and strength, which could have been seen as reasonable and sufficiently job related, except that male fire officers had not been required to satisfy the same tests, and generally could not pass them once they were tested.)

12.3 Selection criteria and qualification standards

Issue for discussion:

Should DDA Standards contain specific provisions, and if so what, on selection criteria?

The existing provisions of the DDA require that selection criteria (whether written or less formal) should not directly or indirectly exclude a person with a disability because of his or her disability, except where:

that disability makes the person unable to perform the inherent requirements of the job (even if reasonable adjustments are made); or

where, to perform the inherent requirements of job, the person would require adjustments involving unjustifiable hardship; or

in the case of indirect discrimination, where the criterion or requirement is reasonable even though it disadvantages people with a disability.

DDA Standards could simply restate this position. However, there are a number of issues where more detailed provision may be appropriate.

Particular issues in this area include:

- what evidence should be taken into account in determining what are the inherent requirements of a job and what weight should be given to different types of this evidence?

- what weight should be given to awards and enterprise agreements?

- what should be done to consider possible reasonable adjustments before specifying selection criteria?

- what (if any) criteria, other than ability to perform the inherent requirements of the job, are reasonable to include and should be permitted?

- in particular, may employers ask questions about abilities or functions which are desirable but not essential?

- can DDA Standards give any more definition to the concept of what is "reasonable" in this area, so that this concept does not either undermine the emphasis of the DDA on inherent requirements, or leave employers in an unacceptably uncertain or restricted position?

- are there some types of criteria which DDA Standards should specify are not to be used except where required by the inherent requirements of the job, in more specifically designated circumstances, or at all?

- how closely do selection criteria and procedures need to be related to inherent requirements (or other permitted bases for decision)?

- what relationship should DDA Standards in this area have to competency based assessment systems?

12.3.1 Inherent requirements and competency based assessment systems

Increasing emphasis has been placed, in a number of industrial relations contexts, on identification and measurement of "key competencies" for a job. These concepts may be relevant to determination of the inherent requirements of a job and a person's ability to perform these requirements under the existing provisions of the DDA. Interested parties may wish to consider whether DDA Standards should specify a relationship between inherent requirements and key competencies. The established approach to key competencies is as follows:

1. Establish the key functions of the job. These are "units of competence". As a rule of thumb, there should be no more than 10.

2. Write down the main tasks in each function. These are the "elements".

3. Write down the measures that can be used to indicate whether the task is being performed to the standard required in the workplace. These are the "performance criteria".

4. Note the range of variables. These spell out the conditions within which the tasks have to be performed.

5. Describe the evidence guide. This optional factor helps assess the performance to measure competency.

Competency refers to a person's ability to perform at a satisfactory level in the workplace. It includes a person's ability to transfer and apply skills and knowledge to new situations and a new environment. It is a much broader concept than simply skill at a task. It includes a set of skills, underlying knowledge and appropriate attitudes.

It includes:

- performance of individual tasks (task skills);

- managing a number of different tasks within the position (task management skills);

- responding to problems, breakdowns and changes in routine (contingency management skills);

- dealing with the responsibilities and expectations of the workplace (job or role environment skills).

Concepts of key competencies and performance in relation to these are also relevant to discussion later in this paper (in section 14, regarding terms and conditions of employment) of performance and conduct standards and duties required.

12.4 Pre-employment Medical Examinations.

Issue for discussion: What medical questions and examinations should be permitted or prohibited by DDA Standards?

Not all employers use pre-employment medicals, preferring to save the expense and rely on other means of assessing fitness for work and other issues where medical evidence might be used. However, some employers clearly wish to use medical questions and/or examinations, for purposes including:

determining fitness for work and ability to perform job requirements;

determining any health and safety issues and responses to these;

identifying reasonable adjustments needed either to meet health and safety issues or more generally because of a person's disability;

determining workers' compensation liability and superannuation entitlements.

Some employers may also use medical questions or examinations on the basis that this is part of routine pre-employment procedure, rather than because of a decision to use the information for specific purposes.

Medical examinations and questionnaires to which a person with a disability must (if answering truthfully) give significant numbers of answers which are clearly not the preferred answer, may serve as a significant barrier to people with a disability. Such questions may make the person with a disability, and other people involved, feel that people with a disability do not belong in the workplace. There may also be fears of discriminatory use of the information and possible breaches of confidentiality in the case of sensitive information.

The U.S. Equal Employment Opportunity regulations provide that no medical inquiries or examination are permitted until a conditional job offer has been made: before this, applicants may only be asked to explain or demonstrate how they can perform job functions. (Demonstration of ability to perform job functions may cover some issues which would also be covered in a medical examination but clearly is more directly focussed on the particular job requirements.)

Following a conditional job offer, a medical examination is permitted under the U.S. regulations. Such a medical examination is not required to be restricted to job related issues; however, any decision to exclude a person with a disability on the basis of such an examination must be based on criteria which are job-related and consistent with business necessity.

Issues to be considered in this area include:

- should medical questions and examinations be permitted before a job offer is made?

- should routine medical questions or examinations be permitted, or only in specific circumstances showing a need for such inquiries?

- when, if ever, would the fact of a person's disability justify a medical examination when such examinations are not conducted as a matter of routine for all applicants?

- when, if ever, should an employer be able to make inquiries or conduct medical examinations to determine whether a person has a disability, including disabilities related to infectious diseases?

- should medical questions and examinations, if permitted, be restricted to examining abilities relevant to the inherent requirements of the job?

- should medical questions and examinations be permitted in relation to other specified issues such as workers' compensation, superannuation, occupational health and safety issues and identification of reasonable adjustments?

- should employers be permitted to conduct general medical examinations and be restricted only in the use to be made of the results of such examinations?

- what provisions should DDA Standards contain regarding confidentiality of medical records?

- should DDA Standards make any provision, and if so in what terms, on what happens if answers to medical questions are later found to be false or misleading?

13. Harassment

Issues for discussion

- What provision should DDA Standards make in relation to disability harassment?

- How should unlawful disability harassment be defined?

- How should any provisions regarding disability harassment be related to provisions regarding permitted or prohibited questions?

Harassment is unlawful both in selection for employment and in the course of employment.

The DDA (section 35) makes it unlawful for an employer or an existing employee to harass someone, who is seeking employment, in relation to his or her disability. (Section 35 also applies to harassment of people seeking to become contract workers or commission agents, but the power to make DDA Standards at present only applies to employment and not to these similar situations.) DDA section 36 makes harassment of an employee regarding his or her disability unlawful.

Harassment by customers, clients or other third parties is not directly covered by the DDA. However, sexual harassment law indicates that an employer may have liability for such harassment, on the basis that it subjects the employee to a "hostile working environment" and thus constitutes discrimination in the terms and conditions of work, where the employer does not take reasonable measures to prevent such harassment.

The existing provisions of the DDA, however, do not define what harassment means for these purposes, and there are no HREOC or court decisions as yet on the meaning of these provisions. While decisions under sexual harassment provisions may offer some guidance, they do not give clear and definite answers to the meaning of section 35 of the DDA. There may be a role for DDA Standards in clarifying issues in this area, and in clarifying the measures which employers are required to take to prevent harassment by co-workers or other parties.

Actions which are intended to cause offence or humiliation to a person in relation to his or her disability, or to make work more difficult or unpleasant, rather than being intended for a legitimate purpose, would clearly constitute harassment under the existing provisions. (This appears clear by reference to the ordinary meaning of the word harassment as well as by reference to sexual harassment cases.) This would be the case whether such actions were motivated by prejudice or hostility toward people with a disability in general or the particular disability in question, or whether the harassment was motivated by more individual factors (e.g. where the harasser is motivated by personal dislike, but uses the person's disability as the means of expressing this dislike).

Intentionally causing a person humiliation in relation to his or her disability would constitute harassment whatever the actions used to carry out this intention - such as verbal abuse or insults, physical assault, sexual harassment, interfering with a person's possessions, or less direct actions such as unjustified disciplinary action or denial of access to information or facilities required for effective and equal participation in the workplace.

More difficult issues arise when actions which cause offence or humiliation in relation to a person's disability are taken without intending this to occur: either because the person taking the action did not consider that their action would be offensive, or because the action was considered necessary for some legitimate purpose despite the possibility that it might cause offence or humiliation.

Issues of this kind arise in relation to questions regarding a person's disability, as discussed earlier in this paper. However, additional provision may be needed regarding questions concerning a person's disability, considered as a form of harassment.

Questions for a particular purpose may be permitted: such as to determine a person's ability to perform inherent job requirements, or any needs for reasonable adjustment; but this does not mean that all questions which are intended for this purpose should necessarily be permitted. For example, any employer would expect to be able to ask applicants a question such as "What makes you think you can do this job?", but no applicant should have to receive a question such as "What makes a cripple/retard/mental case/disease carrier/etc like you think you can do this job?".

Not all issues in this area are so clear cut as the examples above: an employee may be offended by requests (particularly repeated requests) regarding whether a particular reasonable adjustment is needed, while the employer is seeking to protect the employee's interests and avoid potential discrimination liability for failing to provide the adjustment.

Similar issues arise regarding other actions in relation to a person's disability.

Under the Sex Discrimination Act, sexual conduct is unlawful as sexual harassment where the harasser either knows it is unwelcome, or else ought reasonably to have known that it would be unwelcome and offensive. The basis for this is that sexual conduct is not part of work requirements, and that therefore no-one has to put up with sexual conduct as part of the work environment if it is unwelcome to them.

The existing provisions of DDA are likely to have a similar effect regarding disability-related conduct which is not based on a work-related purpose. That is, unwelcome and offensive disability-related actions which are not based on a work-related purpose would be likely to constitute harassment where the person taking these actions either knows, or ought reasonably to have known, that the actions are unwelcome and offensive.

However, this analogy based on sexual conduct and sexual harassment law is not sufficient to deal with all issues which may be seen as disability harassment. Not all disability related questions or actions which may cause distress, offence or humiliation are as irrelevant to work functions as are sexual questions, comments or behaviour.

For example, an employer may well know, and certainly should reasonably expect, that it may cause offence, distress or humiliation for a person to be dismissed because of an inability to perform inherent job requirements, or to be counselled in an attempt to rectify inadequate work performance which may be related to his or her disability. But this does not mean these actions are or should be prohibited, or can, in themselves, be regarded as harassment.

Where an action is intended, and is only what is reasonably necessary, for a legitimate work-related purpose, a complaint of harassment would not succeed under the existing provisions, and should not be possible under DDA Standards.

Where an action can be shown to be intended for the purpose of causing offence or humiliation, or for some other discriminatory purpose, even though it is also intended for a legitimate purpose, the person taking the action would be liable under the existing provisions of the DDA, since (as provided by DDA section 10) an action done for a discriminatory reason as well as other reasons is taken to have been done for the discriminatory reason.

This leaves unresolved, however, issues where a question or other action is intended for a legitimate purpose, but goes beyond what may be seen as the minimum (e.g. the least offensive or intrusive) action necessary for that purpose.

Like other employees and potential employees, people with a disability have a right to expect freedom from unnecessary offensive behaviour or humiliation at work or in seeking employment.

As discussed in relation to discriminatory questions, however, there may be concerns that restricting unwelcome disability related actions, to permit only those that can be shown to be strictly necessary, could prejudice the interests both of employers and of employees or potential employees with a disability. This could occur by discouraging communication on, and action to address, important work related issues including reasonable adjustment, performance of inherent job requirements and health and safety issues.

Interested parties may also wish to consider in what circumstances, if at all, unwelcome offers, or provision, of assistance to a person with a disability, in performance of work related functions or in other respects, may constitute harassment which should be dealt with by DDA Standards.

14. Terms and conditions of employment

The DDA makes direct or indirect disability discrimination unlawful regarding the terms or conditions which are offered to persons seeking employment or which are afforded to employees.

Matters included within "terms and conditions of employment" are not defined by the DDA. General employment law, and cases under other discrimination laws, indicate that terms and conditions of employment includes express terms of a contract of employment; any terms incorporated in the contract of employment because of an award or enterprise agreement; and any terms implied by common law or incorporated because of statutory entitlements.

As well as the legal or contractual terms of employment, "terms and conditions" for the purposes of anti-discrimination law, including the DDA, cover terms and conditions as they are applied in practice, both in formal policies and in less formal practices and day

to day actions and decisions.

Discrimination in terms and conditions of work is unlawful notwithstanding that the discriminatory terms may be agreed in an enterprise agreement. There is no exemption in the DDA for actions pursuant to such agreements. (Some agreements, however, have the effect of an award or order of a tribunal and may be covered by the exemption provided for awards, as discussed below.) However, as indicated by HREOC's Manual on employment issues under the DDA, the terms of agreements are relevant to the determination of the inherent requirements of a job, and would also be considered in determining issues of unjustifiable hardship or reasonableness where relevant.

Nor is there any general permanent exemption for discriminatory actions in accordance with an award. Actions in compliance with awards are specifically protected under the DDA only to the extent that they provide for wage modification based on a person's productive capacity, and only regarding people with a disability who would otherwise be eligible for Disability Support Pension payments. (The Model Clause for the Supported Wage System, which has been approved by the AIRC, would meet these requirements.)

There may also be some protection for discriminatory actions pursuant to award provisions (or agreements having the force of an award) under the exemptions for actions in direct compliance with any other law (until 1 March 1996) and (in the longer term) for actions in direct compliance with laws prescribed by regulation for this purpose. This protection, however, depends on the discriminatory action being in "direct compliance" with the award provision. On the basis of the decision of the High Court in Waters v. Public Transport Corporation regarding equivalent provisions in the Victorian Equal Opportunity Act, an action which is consistent with, or permitted by, but not directly required by, an award provision will not necessarily be covered by the concept of "direct compliance".

Other than as provided by the exemptions in DDA section 47, the DDA takes precedence over any other discriminatory provisions in awards (although, again, the terms of an award will be relevant to determination of the inherent requirements of a job to which the award applies, and would be considered where relevant to determination of issues of unjustifiable hardship or reasonableness).

DDA Standards could assist in ensuring that disability discrimination is avoided in formulation or variation of awards and enterprise agreements, by indicating more clearly what constitutes unlawful discrimination in this area and providing benchmarks for relevant authorities and parties.

Interested parties may wish to consider whether any more specific provision in DDA Standards regarding awards or enterprise agreements would be appropriate.

Matters covered within terms and conditions of employment include:

- wage and salary rates

- range and content of duties required-

- performance and productivity requirements

- conduct and attendance requirements

- occupational health and safety requirements

- equipment provided

- information and communication on work-related issues

- work environment and associated facilities

- supervisory or other management arrangements

- leave entitlements

- workers compensation entitlements

- superannuation entitlements

On some of these matters, the role of DDA Standards might need to be only to confirm that these issues are covered by the DDA, and to apply the general requirements of non-discrimination and reasonable adjustment (as discussed earlier in this paper under "General Issues").

However, there may also be respects in which more detailed provision and clarification of the existing position would be appropriate. Some issues are outlined below.

14.1 Wage and salary rates

Issue for discussion: Should DDA Standards contain an equivalent exemption to that contained in the existing DDA provisions regarding productivity based wage modification?

The existing provisions of the DDA include an exemption regarding a different rate of payment for a person with a disability, where this is in compliance with an award provision, and where the person would otherwise be eligible for Disability Support Pension payments. (This exemption does not apply to reduced wage rates for people with a disability more generally, or reductions other than in compliance with award provisions for wage modification based on a person's productive capacity.)

If DDA Standards are to reproduce substantially the same level of rights and obligations as the existing provisions (either generally, for the reasons discussed earlier in this paper under "General Issues", or specifically in relation to this issue, because of a desire to maintain the system of wage modification based on a person's productive capacity in order to increase work opportunities for persons eligible for DSP payments despite an element of discrimination which may be contained in this system) an equivalent limitation or exception may need to be specified.

DDA Standards could provide the same exemption as the existing provision; or a broader exemption (e.g. not restricted to award-based arrangements or DSP recipients) or a narrower exemption (e.g. only if other employees' wages are also based on productivity).

Without some such exception, it could be argued persuasively that to subject a person to productivity assessment and wage reduction because of his or her disability may be experienced as a detriment in itself (even where the productivity assessment, and payment based on it, accurately and reasonably reflects the person's productivity). Such a detriment because of disability would constitute discrimination, if workers without a disability are not subject to equivalent productivity assessment and wage modification.

14.2 Work performance standards

Issue for discussion: What provision should DDA Standards make regarding standards of quality and level of performance of inherent requirements?

The terms and conditions of work may include standards of performance or productivity, either in formal agreements or policies, or in practice.

Where such standards are part of the inherent requirements of the job, it is not unlawful discrimination under the DDA to fail to employ, or dismiss a person with a disability who cannot meet these standards even with any reasonable adjustment necessary being made). (As discussed earlier in this paper in relation to selection criteria and job descriptions, DDA Standards might usefully clarify the meaning of inherent requirements and the means of determining these.)

However, employers may also enter into agreements, or be bound by awards, or simply decide, to apply such standards for other purposes - such as paying bonuses or performance pay to employees who meet these standards.

Similarly, some employers may wish to apply disciplinary measures short of dismissal to employees who do not meet performance standards. It would be paradoxical if an employer was permitted to dismiss a person for not meeting a particular requirement, but was not permitted to take less adverse measures (at least where these other measures do not contravene other requirements of the DDA such as the prohibition of harassment).

As indicated by the example regarding bonuses above the ordinary rate of pay, performance standards may also go beyond the minimum of the inherent requirements of the job. It is important to note, therefore, that inherent requirements is not the only applicable limitation on the concept of discrimination in this area.

The Second Reading speeches and Explanatory Memorandum accompanying the introduction of the DDA in Parliament make clear the intention that the DDA permits the selection of the best person for the job. This would not be consistent with an obligation to employ, promote, or confer bonuses or other benefits on, a person with a disability because he or she has the bare minimum qualifications or can meet the bare minimum performance of inherent requirements.

In the Sub-committee's view, less favourable treatment because a person cannot meet performance requirements could not properly be considered direct discrimination because of disability (even where this inability to meet the requirements is because of a disability), except where such requirements are applied more stringently because of a person's disability than they are or would be to persons without the disability.

However, performance requirements which people with a disability are disproportionately less able to meet would appear to involve indirect discrimination under the existing DDA provisions, where these requirements are not reasonable.

Clarification by DDA Standards of what requirements are reasonable in this area may be desirable. In considering this issue, interested parties may wish to consider for comparison the U.S. position, where the Equal Employment Opportunity regulations under the Americans with Disabilities Act make clear that employers are not required to lower performance or output standards so long as these are genuinely and equally applied in practice, rather than for example being imposed to exclude the person with the disability.

14.3 Range and content of duties required

Issue for discussion:

What provision should DDA Standards make to clarify the applicability and meaning of requirements of reasonableness regarding changes in job requirements?

Assignment of a person, because of his or her disability, to duties within the range potentially required of a position which are less rewarding (in terms of payment, opportunities or satisfaction), more unpleasant or otherwise less favourable would constitute discrimination under the existing provisions of the DDA. Obviously, there are exceptions to this where the person cannot perform the more favourable duties even if reasonable accommodation is made. Both the applicability of non-discrimination in this area and the exceptions to this, however, might usefully be stated more clearly by DDA Standards than is provided by the existing provisions.

More complex issues arise regarding the range of duties which may be required of a person in a particular job.

As discussed earlier in this paper, it is not unlawful under the DDA to refuse to employ a person for, or dismiss a person from, a job of which the person cannot perform the inherent requirements (even if any reasonable adjustments necessary are made to enable performance of these requirements) because of his or her disability.

However, the existing provisions of the DDA do require reasonable adjustment regarding at least some of those features of a job which are not inherent requirements.

Reasonable adjustment is clearly required regarding different methods for achieving the same tasks or results (for example, moving crates by use of a trolley rather than manual handling).

It is less clear, however, to what extent reasonable adjustment is required regarding the substantive tasks to be performed, or results achieved, by the person in a position.

The Americans with Disabilities Act and the Equal Employment regulations under this legislation include reassignment of "non-essential" job functions as a form of reasonable adjustment. Case law under Australian State legislation similarly indicates that re-assignment of some functions may be required. The U.S. legislation, however, and Australian State and Territory legislation, do not use the same terms as the DDA.

Although the DDA does not use the term "essential functions", and HREOC has avoided equating "inherent requirements" with "essential functions" in materials published to date, HREOC's Employment Manual does indicate that in some circumstances, while it is essential that a function be performed by someone, it may not necessarily be an inherent requirement of the particular position in question that the function be performed by the person in that position.

A major issue here is how far the duties of a job are for the employer to determine, and how far this determination is reviewable by HREOC (or other tribunal) or the courts. The DDA refers to the "inherent requirements of the job", rather than the "requirements of the inherent job". This may be argued to indicate that although the requirements of the job to be performed are subject to objective assessment (that is, by the courts, HREOC or other relevant external decision maker), the job to be performed is for the employer to determine (including within the framework of relevant awards and/or agreements), so long as this is done in good faith and not either as a means of artificially excluding a person with a disability or only in terms of a duty statement which does not reflect the job as performed in practice.

DDA Standards might make clearer when an employer is required to vary the duties of a position (that is, whether there is a duty in all cases to modify duties if this is reasonable and/or does not impose unjustifiable hardship, or whether the job to be performed is entirely for the employer to determine, or some intermediate position).

The discussion above concerns the extent of a duty on employers to modify jobs to accommodate persons with a disability. Similar, but not necessarily identical, issues arise concerning situations in which an employer modifies or proposes to modify an existing position in a way which may disadvantage a person with a disability, either pursuant to an enterprise bargain or other agreement, or unilaterally in response to technological, market or other changes.

If the inherent requirements of a job change such that a person cannot perform these requirements, DDA section 15(4) indicates that dismissal from the position, or failure to appoint a person to the position, will not constitute unlawful discrimination under the DDA.

However, there are also issues of whether the change in job requirements could constitute discrimination in itself (since section 15(4) does not apply directly to terms and conditions of employment). This is of particular, but not exclusive, relevance to processes of multi-skilling in connection with award restructuring or enterprise bargaining, and could arise:

- where a person with a disability seeks to have such a change prevented or reversed (at least as it applies to him or her), and thus prevent the issue of dismissal arising; or

- where a change in job requirements does not prevent a person with a disability from performing the inherent requirements of the job, but does involve a detriment such as making work less financially rewarding, more onerous, less interesting or less likely to lead to opportunities for promotion or other advancement.

As discussed in relation to job modifications to accommodate a person with a disability, it may be argued that in referring to the inherent requirements of "the job", the DDA takes "the job" as given, that is as being for the employer to determine (at least so long as this is done in reality and in good faith, and not as a pretext for discrimination).

It may also be argued that to interpret the DDA as limiting changes in the inherent requirements of a job:

- would be inconsistent with the protection given to decisions to dismiss, or not employ, a person who cannot perform such requirements;

- would distort the purposes of anti-discrimination law towards welfare or job-creation purposes, by requiring employers to provide or maintain a particular kind of employment (because this provides, or is thought to provide, opportunities for people with a disability), rather than to "eliminate discrimination", as indicated by the objects of the DDA, by affording equality of opportunity regarding whatever jobs exist;

- could prejudice the interests of employers, and the community more generally (to the extent that such a requirement was implemented rather than ignored), by restricting the ability of employers to structure work to be as productive as possible and as responsive as possible to commercial requirements (in the case of business enterprises) or (in the case of government agencies) to the demands of achieving the public purposes for which these agencies exist. These purposes, other than in the context of job creation programs (general or targeted at people with a disability) do not generally include (and in any event are not required by the DDA to include) treating employment (of people with a disability or anyone else) as an end in itself (or, in particular, as a "service" to the employee), rather than as a means of achieving the substantive goals of the organisation;

- could shift attention and resources away from making effective reasonable adjustments to enable people with a disability to perform the jobs which are available, thus potentially limiting opportunities for employment and promotion, as well as opportunities for higher productivity and therefore higher pay;

- could unnecessarily promote an image of people with a disability as restricted in the types of job which they can perform; and

- would presuppose the existence and appropriateness of a more highly regulated system concerning workplace changes, rather than being capable of applying effectively in more or less highly regulated or flexible industrial relations systems (as exist between different Australian jurisdictions and may exist from time to time).

However, it may also be argued that:

- the existing provisions of the DDA in relation to indirect discrimination apply to "requirements or conditions" which define a job as well as to other requirements or conditions (except where the exception in DDA section 15(4) applies regarding appointment or dismissal);

- DDA Standards should not reduce the level of present protection;

- application of indirect discrimination principles does not prevent changes in job requirements, but allows the reasonableness of these changes to be scrutinised where they have an adverse impact on people with a disability; and

- scrutiny of changes in job requirements for any disadvantageous impact on workers, including workers with a disability, is provided for under the current Industrial Relations Act in the context of certification of enterprise bargains, and the DDA should not provide any lower standard than this.

14.4 Conduct and attendance requirements

Issue for discussion:

Should DDA Standards contain provisions, and if so in what terms, regarding permissible policies or actions concerning behaviour of employees?

Ability of employers to set performance and conduct standards on matters related to disability has been the subject of considerable discussion in the U.S. in relation to the Americans with Disabilities Act.

Where a person with a disability suffers some detriment not because of the disability itself, but because of some more neutral requirement which, however, has a disproportionate impact on people with the disability compared to people without the disability, unlawful discrimination will be found under the indirect discrimination provisions of the DDA if, but only if, the requirement is unreasonable.

In some cases, however, behaviour which presents, or is perceived as presenting, problems for other parties may be regarded as so closely connected with a person's disability that less favourable treatment (dismissal, disciplinary action etc) because of the behaviour may be regarded as less favourable treatment because of the disability.

Accordingly, direct discrimination under DDA section 5, which does not incorporate the same concept of reasonableness, could apply. On this approach, employers would need to defend their decisions by reference to inherent requirements, or other relevant exceptions, on a case by case basis. Alternatively, employers could seek to argue in any particular case that direct discrimination analysis does not properly apply to the circumstances (so that only indirect discrimination analysis, which does provide for consideration of reasonableness, should apply), on the basis that the person is not treated less favourably because of his or her disability, since a person without a disability who behaved in the same way would receive the same treatment. Such arguments could be made whether the action concerned was pursuant to a general and formal policy, or was a more individual response to an instance of unacceptable behaviour without a formal policy being in place.

Consideration of reasonableness in this context appears (on the basis of the approach indicated in the High Court in the Waters case) to include consideration of the purpose for which the condition or requirement is applied. Thus a rule which it may be reasonable to have in place and use as the basis for some forms of disciplinary action may not be reasonable when considered as a basis for summary dismissal without prior warning.

These case by case approaches may be regarded as necessary to ensure that each case is dealt with fairly on its merits. However, such case by case determination may not be regarded as a sufficiently clear basis for application of rules on conduct - for example, regarding use of alcohol or drugs, or regarding unacceptable behaviour towards co-workers or customers. Apparently conflicting U.S. Federal District Court decisions in this area under the Americans with Disabilities Act may give grounds for concern in this respect.

The lack of explicit provision in the DDA in this area may also lead to failure to make reasonable adjustments to general policies (such as, where applicable, provision for counselling, leave for treatment or rehabilitation programs, last chance warnings etc), due to the relevance and effect of indirect discrimination law not being sufficiently clear.

DDA Standards in this area might thus promote wider implementation of reasonable adjustment, as well as providing a more certain basis for implementation of policies with legitimate aims.

These objectives, as well as being desirable in themselves, may reduce employer concerns regarding potentially being unable to deal with unacceptable conduct by a person whose disability affects, or it is thought may affect, behaviour, and thus assist in addressing barriers to entry for people who have such a disability.

However, care would also be needed in designing any DDA Standards in this area to ensure that people whose disability may affect behaviour are not unfairly deprived of protection against arbitrary actions or unnecessarily restrictive and discriminatory policies.

14.5 Occupational health and safety requirements

Issues for discussion:

What provision should DDA Standards make in relation to health and safety issues?

What level or types of risks would justify measures adverse to equal opportunity for a person with a disability ?

What evidence should be required or permissible, and who should judge, that the activity in question involves such a risk regarding the person with a disability?

What risks should an employee with a disability be able to assume?

Non-discrimination in terms and conditions of work as required by the DDA includes equal protection of health and safety in relation to work for people with a disability as for other employees. This includes, as necessary, effective access to relevant information and training, and any reasonable adjustments required to equipment, facilities or work procedures to ensure safety for all workers including people with a disability. In this respect, concurrent and similar obligations arise under the DDA and under occupational health and safety legislation.

More difficult and controversial issues may arise, however, in areas of perceived tension or conflict between anti-discrimination and health and safety objectives.

Work for many people with a disability may involve no significant additional occupational health or safety risks, or such risks may be acceptably resolved by reasonable adjustment in work methods or equipment for the person concerned, or by more general adjustment for all workers, for example safer manual handling methods.

However, some issues may not be resolved acceptably, or resolved with sufficient certainty, by these means.

There is no general and explicit provision in the DDA on the position of actions or decisions taken in the interests of health and safety of the worker concerned, other workers or other parties concerned.

This does not mean either that the DDA prohibits all such decisions or actions in relation to a person's disability; or that it fails to regulate the matter and leaves it entirely to other areas of the law. HREOC's employment Manual indicates that:

a requirement to be able to work without unacceptable risks to self or others may be considered among the inherent requirements of the job;

whether a person can fulfil this requirement will be open to review by HREOC rather than being conclusively determined by the employer's decision or by medical evidence;

decisions on health and safety issues include whether the person is able to fulfil requirements if some reasonable adjustment is made, i.e. an adjustment which does not impose unjustifiable hardship on other parties.

The view that health and safety requirements may form part of the inherent requirements of the job is, however, only a view at this point, as no directly applicable court or HREOC decisions have yet been made. Decisions on related, though not identical, issues under the Sex Discrimination Act may be regarded as casting come uncertainty on this view.

Also, as discussed in earlier sections of this paper, the exceptions in the DDA which refer to inherent requirements deal only with issues of non-appointment or dismissal, not with other issues arising in selection for employment or in the course of employment.

Consideration is therefore needed of the effect of other exceptions or limitations in the DDA.

Where a person's disability is an infectious disease, DDA section 48 provides that measures which are reasonably necessary for the protection of public health are not unlawful.

Thus in relation to infectious diseases, unlike other types of disability, it is not necessary to derive coverage by the DDA of health and safety issues from "inherent requirements". The position in this area may therefore appear more easily understood. There may also be a greater margin for decision, since while measures in this area must be "reasonably necessary" there is not the same requirement as there appears to be under "inherent requirements" that decisions be not only reasonable but objectively correct.

However, employers or people with disabilities or both may nonetheless see a need for DDA Standards to provide greater certainty and specification of rights and obligations in this area than is possible through guidelines, codes of practice etc.

Concerning disabilities other than infectious diseases, HREOC's Manual indicates that measures necessary to comply with requirements of occupational health and safety law may be protected by the exception in the DDA for actions in direct compliance with another law; but that:

the test for what constitutes "direct compliance" as indicated by the High Court in Waters v. Public Transport Corporation is strict, both in terms of what are the requirements of the other law, and in terms of whether the discriminatory action is necessary to comply with these requirements;

the general exception for actions in compliance with other laws runs only to 1 March 1996; thereafter the exception will apply only to actions in compliance with those laws specified for this purpose by regulation.

Lack of certainty and clarity in this area may be detrimental to:

employers, who may have difficulty in understanding how to reconcile their obligations under anti-discrimination law with those under OH&S law, and may be exposed to liability under either or both sets of laws if the decisions they make are judged to be wrong by OH&S or anti-discrimination authorities or both;

opportunity for people with disabilities, who may continue to be excluded by unnecessarily restrictive decisions, since while faced with uncertain and potentially conflicting obligations many employers may continue to decide to risk discrimination complaints rather than possibly more expensive claims under health and safety law, or other heads of liability;

safety for all parties, since:

(1) uncertainty regarding what measures are permitted may lead to failure to take reasonable or necessary measures for protection of health and safety (For example, if concern regarding coverage of alcoholism as a disability and the consequent potential for complaints, leads to failure to take measures regarding people affected by alcohol at work or on the journey to work);

(2) continued reliance on discriminatory policies may involve a failure to take more general measures which are necessary or which may be more effective. (For example, a policy of excluding people with past back injuries from the workplace is not an effective substitute for general implementation of safe manual handling practices. )

More specific provision in the DDA through DDA Standards on what is permitted and what is prohibited in the health and safety area may therefore merit consideration. This does not mean that DDA Standards should attempt to provide a complete code on health and safety issues in relation to all disabilities, or any particular disability, in all circumstances, but it may be that DDA Standards could at least provide a clearer framework for parties making decisions in this area.

This might include specification or guidance on the following issues:

What level or types of risks would justify measures which limit equal opportunity for a person with a disability

The Equal Employment Opportunity regulations under the Americans with Disabilities Act use a test of "direct threat" in this area, which is intended to prevent people with a disability being disadvantaged or excluded because of unreal fears or remote possibilities, while allowing genuine concerns to be addressed.

What evidence should be required or permissible, and who should judge, that the activity in question involves such a risk regarding the person with a disability

In addition to the issues raised earlier in this paper regarding medical and other questions, consideration is needed of whether actions taken in response to health or safety concerns should be permitted only if objectively necessary and the least restrictive means available for the purpose; or if such actions are reasonable in the circumstances; or some other test.

What risks should an employee with a disability be able to assume?

Some representatives of people with a disability have asserted a principle of "equal dignity of risk", in so far as risks are to the person him or herself rather than to others, on the basis that a person should not be restricted in the activities he or she is able to undertake (including in employment) because of the perceptions of others on risks involved, if the person him or herself makes an informed decision to assume this risk.

It is not clear, however, how far there is scope for application of such a principle under the DDA in relation to employment, other than in relation to risks which are not real or are not sufficiently substantial to take into account. The position may be different in areas covered by the DDA other than employment, but obligations of employers to provide a safe system of work cannot be waived by agreement, or transferred to the employee.

To permit this regarding employees with a disability could itself be seen as discriminatory, and as exposing employees to hardships of being unprotected against risks found to be voluntarily taken. Hardships of this kind resulted from the former operation of common law doctrines of voluntary assumption of risk, which statutory occupational health and safety regimes were intended to displace.

14.6 Equipment and facilities provided for performance of work

Issues for discussion:

What provision should DDA Standards make regarding work equipment? Should this include provisions, and if so what, regarding which matters employees and employers are responsible for?

Discrimination regarding this aspect of the terms and conditions of work under the existing provisions of the DDA would cover:

- non-discriminatory access to work equipment and work facilities provided to other employees (that is, a person not being excluded from use of such equipment or facilities because of disability, or permitted to use them only on less favourable terms); and

- reasonable adjustment to equipment or facilities (that is, the removal of indirectly discriminatory features which unreasonably prevent equal access to and effective use of equipment or facilities).

As discussed earlier in this paper in relation to reasonable adjustment, these general requirements could be either restated in these broad terms in DDA Standards, or more specific provision made regarding types of adjustment required, and more specific circumstances where particular adjustments are or are not required.

Other sections of this paper refer to issues of reasonable adjustment in the context of decisions regarding appointment, promotion or other advancement, changes in job requirements, or dismissal because of inability to perform the inherent requirements of the job. Issues regarding adjustments when an employee acquires a disability, or an increased degree of disability, during the course of employment have also been referred to. Interested parties may also wish, however, to consider what if any provisions DDA Standards should contain regarding ongoing rights and obligations regarding reasonable adjustment in other circumstances during the course of employment: in particular, where changes occur which affect the effectiveness, feasibility or cost of reasonable adjustments relevant to equality in terms or conditions of employment for a person with a disability.

As indicated in relation to reasonable adjustment issues generally earlier in this paper, specification by DDA Standards may be desirable of matters which are or are not within the responsibility of employers (subject to limitations of reasonableness, unjustifiable hardship or equivalent as specified) or which are rather the responsibility of the employee or potential employee; or specification of more definite criteria for determining which of these categories applies to a particular issue.

Equipment or other adjustments which are exclusively or primarily for personal use or personal benefit are indicated not to be within employer responsibilities for reasonable adjustment under the Americans with Disabilities Act. The same position would appear to apply under the DDA, unless the employer (by agreement or as a matter of practice) supplies or funds equivalent equipment etc. For example, it would not be expected to be the responsibility of an employer to provide or maintain personal equipment such as hearing aids, reading glasses, wheelchairs, medication, or to provide assistance such as home attendant care (as distinct from personal assistance at work), irrespective of cost or other hardship issues. There may, however be issues where allocation of potential responsibility under the existing provisions is less clear, and where DDA Standards may provide appropriate clarification.

An alternative approach would be to leave these issues of responsibility to be determined within the general framework of reasonableness or unjustifiable hardship: that is, to leave issues of whether a particular instance of equipment or assistance is properly the employer's or employee's responsibility as one factor to be weighed together with issues of costs and benefits, rather than as preventing consideration of these issues in some cases. This approach would provide greater flexibility but (consequently) less certainty for all parties.

14.7 Work environment and associated facilities

Issue for discussion:

What provision should DDA Standards make regarding equality and access in work environment and work related facilities?

As well as equipment and facilities directly necessary for the performance of job functions, the terms and conditions of employment (and thus the issues covered by the DDA) include the work environment and facilities provided in relation to work.

Options in this area could include a general provision confirming that requirements of non-discrimination and reasonable adjustment apply to work environment and associated facilities; or provisions specifying in more detail those features and facilities required to be equally accessible, what is required by equal accessibility in this context, and any limits to this. (Similar issues and options would appear to arise regarding information and communication at work. These issues are not discussed in any more detail in this paper.)

The work environment as part of terms and conditions of employment also includes issues of employer responsibility for a "hostile work environment" due to harassment. These issues have been discussed earlier in this paper.

14.8 Leave entitlements

Issue for discussion:

Should DDA Standards make specific provision, and if so in what terms, regarding use of leave entitlements?

The existing provisions of the DDA clearly cover less favourable treatment through denial or restriction of access to the same leave entitlements as other employees because of a person's disability.

Issues of indirect discrimination, requiring reasonable adjustment regarding leave entitlements, are likely to be of greater relevance to many people with a disability (including where the disability involves periods of increased level of disability, or need for therapy), and to present greater complexities which DDA Standards might assist in addressing. Issues which might arise in this area include:

- conditions of access to available leave entitlements (such as the purposes for which leave is available; when leave entitlements may be used; notice or justifying evidence required, or other procedural requirements); and

- level and forms of leave available (including issues regarding taking of unpaid leave.

(As indicated earlier in this paper, issues regarding needs for flexibility in use of leave entitlements which are due to a person's responsibilities as a parent, partner, other family member, carer or other associate of a person with a disability are not able to be addressed under the present provision for making of DDA Standards in relation to employment of persons with a disability.)

14.9 Workers' compensation entitlements

Issues for discussion:

What provision should DDA Standards make regarding use of past history of workers' compensation claims?

What provision should DDA Standards make regarding direct or indirect limitations in workers' compensation entitlements for people with a particular disability?

There are a number of complex issues regarding the relation of the DDA to workers compensation entitlements, which have not yet been the subject of HREOC or court decision under the DDA.

Issues of collection and use of information regarding a person's history of disability or pre-existing injury, including previous workers' compensation claims, have been referred to earlier in this paper in relation to application forms and medical and other disability related questioning.

As already noted, employers may expect to be able to use such information:

- in determining health and safety issues (including decisions whether a person can safely perform a work function, and what if any adjustments in equipment or work practices may be possible and necessary to ensure that the person can work effectively and safely, i.e. to conform both with anti-discrimination obligations and with occupational health and safety legislation);

- in determining compensation entitlements (including questions of when an injury occurred, who was responsible, and whether any issues of fraudulent claims are involved).

People with a history of disability, however, will expect protection against discriminatory exclusion from, or limitation of, work opportunities or entitlements based on this history.

Discrimination because of a disability which a person had in the past is unlawful under the existing provisions of the DDA. However, there may be a need for clarification of what discrimination means in this context and what the effect is of relevant exceptions under the existing provisions of the DDA.

Issues of exclusion or limitation of workers' compensation benefits regarding particular types or levels of disability, or limitations which are general in form but impact disproportionately on people with a particular disability, have been raised by a number of complaints under the DDA, but have not as yet been the subject of substantive HREOC or court decision.

In some cases, the actions complained of have not proceeded to substantive decision because they have clearly been covered by the exemption in the DDA for actions in direct compliance with another law, i.e. the relevant State workers' compensation laws. As already noted, however, this general exemption expires on 1 March 1996. After this, the laws in question will be exempt under the existing DDA provisions only if exempted for this purpose by regulation. Consideration of issues regarding possible DDA Standards in this area may assist in determining whether such extended exemptions by regulation should be granted. Resolution of issues in this area may therefore be regarded as having some urgency.

14.10 Superannuation entitlements

Issues for discussion:

What if any provision should DDA Standards make regarding superannuation entitlements: in particular, regarding the effect of the existing superannuation and insurance exemption; reduced entitlements as a result of prior discrimination; exclusion or limitation of entitlements regarding a particular disability; the relationship of the DDA to the Superannuation Guarantee legislation; or the relationship of superannuation eligibility to decisions whether to employ a person?.

A number of issues in this area may be appropriate for specific consideration in the context of DDA Standards.

14.10.1 Effect of existing superannuation and insurance exemption

As discussed earlier in this paper in relation to medical and other questions, issues of limitation of or exclusion from superannuation entitlements may arise at the point of entry to a superannuation scheme regarding a person's existing disability, history of disability or prospects regarding disability in the future. These exclusions or limitations may be arbitrary and unnecessary in some cases.

However, exclusions or limitations may also accurately reflect differences (actual or expected) in the rate, period and total of superannuation contributions. To the extent that superannuation includes life or disability insurance components, limitations or exclusions on entitlements may also be based on the risk assessment which is inherent in the nature of many forms of insurance; or simply be a refusal to insure as a risk what is not a risk but an already certain event.

The existing provisions of the DDA include an exemption for distinctions or exclusions in relation to provision or terms of insurance or superannuation, where these distinctions are reasonable having regard to any actuarial or statistical data (where this is reasonably available) and any other relevant factors.

This exemption would appear to apply equally to decisions by a superannuation fund, or by or on behalf of an employer in relation to superannuation as a term or condition of employment. (That is, the exemption provided by DDA section 46 is not restricted to superannuation and insurance considered as services under DDA section 24, but applies to any discrimination under part 2 of the DDA including section 15 regarding employment.)

There may, however, be a role for DDA Standards in indicating more clearly what distinctions in this area will or will not be regarded as reasonable and permissible.

These issues may include provisions indicating what extent of protection people with a disability may reasonably expect, and what employers and/or funds expect to be required to afford, regarding disadvantage in superannuation outcomes or conditions resulting from interruptions which a person's disability may cause in career patterns.

Further issues may arise concerning what are the respective responsibilities of employers and superannuation funds (since in some instances there may be difficulty for employers in finding or providing access to a fund which does not impose the discriminatory restriction concerned, and issues regarding whether the employer is properly liable, and if so to what extent for the resulting inequality in terms or conditions of employment in this respect).

14.10.2 Reduced entitlements as a result of prior discrimination

DDA Standards might also set out the liability of employers regarding reduced superannuation entitlements where these result from a reduced period or rate of contribution which in turn results from prior discrimination by the employer: that is, set out the application of the principles determined in relation to sex discrimination in the Australian Iron and Steel case, without the need for similarly complex and protracted litigation to establish the applicability of these principles under the DDA.

14.10.3 Exclusion or limitations regarding a particular disability

Particular issues arise regarding the exclusion or limitation of superannuation benefits regarding a specific disability or type of disability, including in the disability insurance component of superannuation.

As well as the issues already discussed regarding reasonableness, in some cases there may be issues of whether the limitation or exclusion is because of the disability which the person has, or whether the person's lack of eligibility for the benefit or level of benefit concerned is because they do not have (or their claim is not or would not be in relation to) one of the disabilities or types of disability which the eligibility criteria for the benefit do cover. In the second of these types of situation, there may be no unlawful discrimination under the existing provisions of the DDA, even without considering the exemption regarding insurance and superannuation.

Section 5 of the DDA defines direct discrimination as less favourable treatment because of the disability which a person does have (or had in the past, may have in the future or is imputed as having. It does not include less favourable treatment because a person does not have a disability, or does not have a particular disability.

There would also be issues in such cases of the effect of DDA section 45 regarding "special measures". It is not unlawful to do an act which is reasonably intended to provide benefits to people who have a disability, or a particular disability. This provision indicates that it is not necessary to ensure that a disability related benefit will be equally beneficial to all people with a disability in order to be permitted to provide the benefit at all. (For example, there is no requirement that insurance for people whose disability is the result of a work-related accident should cover people whose disability has a different cause; or that programs or benefits for people who are blind should be provided to people who are not.)

However, it would not appear consistent with the objects of the DDA to apply these provisions to permit exclusion, or at least unreasonable exclusion, from general benefits for which they would otherwise be eligible.

DDA Standards might serve to clarify relevant principles and their application in this area.

14.10.4 Relationship to Superannuation Guarantee Act

Where lower levels of superannuation benefits are proportionate to a lower level of income or period of contribution (and where this does not itself involve or result from discrimination, as discussed above) there would appear to be no discrimination under the DDA (no less favourable treatment because of disability, or unreasonable requirement, being identifiable in such a case).

More substantial issues may arise, however, where outcomes are lower, to a greater extent than pro rata, for workers with a disability concentrated in lower income positions (in particular, those subject to productivity based wage modification arrangements, including as part of the Supported Wage Scheme), because their income level is below the threshold for compulsory employer contributions under the Superannuation Guarantee Act.

The exception under the DDA for actions in direct compliance with another law does not appear applicable to this issue. The Superannuation Guarantee Act requires payment above the threshold, but does not prohibit payment below. That is, it is possible to comply with the SGA while either paying the same proportion below the threshold, or not, so long as the required payments are made above the threshold. Any discrimination is thus not directly required by the other law in question. Rather, it would require defending (to the extent possible) under the general exception regarding reasonable distinctions in superannuation and insurance.

DDA Standards might clarify the position in this area and ensure that employers are not misled as to their obligations, or employees with a disability as to their rights.

14.10.5 Relationship of superannuation eligibility to employment decisions

Decisions not to employ or promote, or to dismiss, a person because his or her disability limits or excludes superannuation entitlements, are not covered by the superannuation exception in the DDA. This exception covers only reasonable limitations in, or exclusions from, superannuation entitlements, not other actions associated with this.

A decision not to employ a person because of ineligibility for a superannuation scheme, where this in turn is because of a person's disability, would constitute unlawful indirect discrimination under the existing provisions of the DDA, unless the requirement to be eligible, and the eligibility requirements concerned, can be shown to be reasonable. This would be expected to be difficult to demonstrate, considering that the objects of the DDA include to eliminate discrimination in work "as far as possible".

DDA Standards might clarify whether, and if so in what circumstances, it is permissible not to employ a person because of disability-related limitations in superannuation entitlement.

(Issues regarding the relationship between superannuation and employment decisions have also been discussed in sections 11 and 12 of this paper regarding application forms and pre-employment medical questions. Discussion in those sections is also relevant to this issue.)

15. Access to opportunities for promotion, transfer or training

Issues for discussion:

What provision should be made by DDA Standards regarding opportunities for promotion, transfer or training?

In particular, should specific provision be made regarding accessibility of training, or regarding additional training as a form of reasonable adjustment?

In referring to access to "opportunities for promotion, transfer or training", the DDA requires non-discrimination not only in direct decisions whether to transfer or promote a person or provide him or her with training, but also in matters affecting a person's opportunities to have access to promotion, transfer or training.

This would include, for example, discrimination (direct or indirect) affecting a person in acquiring the skills, experience or qualifications required for promotion or transfer or eligibility for a particular form of training. These matters (including issues affecting on the job learning such as opportunities to work temporarily in different or more senior positions, and level of access to assistance or mentoring from colleagues or supervisors) may be regarded as covered sufficiently by general provisions regarding reasonable adjustment, or may be considered appropriate for more specific provision. Also included would be equality of access to information about such opportunities.

Issues regarding non-discrimination in promotion and transfer substantively appear to be the same as, or similar to, issues already discussed regarding selection for a new job in other circumstances, at least where promotion or transfer involves a new job rather than progression within an existing job provided as part of the terms or conditions of that job.

15.1 Accessibility of training

As well as direct discrimination in selection of persons for training opportunities, the existing indirect provisions of the DDA apply to indirect discrimination affecting the training provided. This would include matters such as the accessibility of training venues and information provided, or other features of training methods or arrangements which disproportionately and unreasonably exclude or disadvantage people with a disability.

Existing requirements in this area could be reflected by general provisions for obligations of non-discrimination and reasonable adjustment. Alternatively, DDA Standards could provide a more detailed checklist of requirements and limitations to assist employers, training providers, employees and other interested parties in this area.

Obligations regarding accessibility of training would apply whether provided in house or delivered by an external organisation on behalf of the employer. Interested parties may wish to discuss whether DDA Standards should make any specific provision regarding respective responsibilities of employers and training providers in this regard.

15.2 Additional training as a form of reasonable adjustment

In principle, a period of training or rehabilitation (which might be additional to that provided to employees generally) to allow a person to become able to perform the inherent requirements of the job would be a form of reasonable adjustment covered by the DDA, where it does not involve unjustifiable hardship.

However, it may be useful to have the principles in this area set out in more explicit detail, including for the purpose of clarifying the relationships between the DDA and other areas of law applying to worker's compensation and rehabilitation issues; instances where training for workers other than the person with a disability directly concerned may be an issue (for example, to ensure effective communication between the employee and immediate supervisors or work team members); and issues regarding extended training or probation periods which may be applied to some people with a disability. (These could be seen, depending on the circumstances, either as a form of reasonable adjustment, or as a detriment and potentially discriminatory.)

Issues regarding instances of provision of training by external agencies, which may be provided to some people with a disability pursuant to specific employment programs, might also merit consideration (including terms of access by external trainers to work premises or facilities, and any impact of such external provision on an employer's own training responsibilities).

16. Other benefits or detriment associated with employment

Issues for discussion:

What provision should DDA Standards make regarding benefits associated with employment? What provision should DDA Standards make regarding any other forms of detriment not already specified?

Employers may provide benefits which are not essential to performance of inherent or other work requirements, but which are part of the conditions of employment, whether by agreement, pursuant to awards, or as a matter of practice, or at any rate are associated with employment.

These might include social, sporting, educational, refreshment or other facilities, opportunities or services; or provision or funding of equipment such as cars for personal use, or mixed personal and business use.

Other matters in this category, and which have been the subject of complaint under the DDA (though not as yet of HREOC or court determination) might include access to, and terms of, benefits on departure from employment, such as redundancy payments, or provision of references.

Dismissal is generally experienced as a detriment, and thus as something for which people with a disability should not be singled out, or to which they should not be unreasonably and disproportionately subjected.

However, in some instances, benefits associated with redundancy (either generally applicable benefits, or benefits in the circumstances of an individual) may be such that selection for redundancy or early retirement is experienced by some or all workers as a benefit, eligibility for which is sought after.

A number of complaints under the DDA to date have concerned ineligibility of workers currently in receipt of workers' compensation entitlements, and who by definition thus have a disability, or at least a past disability, for schemes providing for redundancy on advantageous terms. In some cases this ineligibility is based on statutory provisions. However, the general exemption applicable to actions in direct compliance with such provisions expires in the near future (1 March 1996), and it may therefore be appropriate to consider in the context of DDA Standards what application the DDA should have in this area after that date.

More generally, DDA Standards might usefully list types of work-related benefit or detriment which the DDA applies to, and possibly specify in more detail the effect of principles of non-discrimination and reasonable adjustment in these respects.

Together with any such list, however, it may be necessary for DDA Standards to maintain general or residual categories of "other benefits" and "other detriment" to ensure that rights are not inadvertently removed regarding benefits or forms of detriment not specified.

17. Dismissal

Issue for discussion: What provision should DDA Standards make in relation to discrimination regarding dismissal?

The DDA does not create any absolute right for a person with a disability not to be dismissed, or not to be dismissed in a way which is unfair in a general sense. Its purpose and effect in this area is only to prevent discriminatory dismissal.

The existing provisions of DDA section 15(4) indicate that it does not constitute unlawful discrimination to dismiss a person who cannot perform the inherent requirements of the job (with or without adjustments which do not impose unjustifiable hardship), whether or not this is because of the person's disability.

Issues regarding clarification of concepts of inherent requirements of the job and of unjustifiable hardship have been discussed earlier in this paper, including in relation to selection for employment. This discussion is also relevant to issues concerning dismissal.

However, section 15(4) does not state exhaustively the circumstances when dismissal may occur without unlawful discrimination under the DDA. Dismissal which does not involve discrimination as defined in sections 5 to 9 of the DDA is not unlawful under the DDA regardless of any relationship to inherent requirements.

Thus, dismissal which is not because of disability does not constitute direct discrimination, whether or not the person can perform the inherent requirements of the job, and whether or not the dismissal is unfair.

Dismissal which is not directly based on disability may constitute indirect discrimination, if it involves or is based on a condition or requirement which the person with a disability who is dismissed does not or cannot meet, which people with that disability are substantially less able to meet than other people, and which is not reasonable.

Such discrimination may occur, for example, if people with a disability are particularly concentrated in the occupational classification or other group of workers targeted for redundancy, and if the selection of this group is found to be unreasonable.

This may be more likely to be found if the concentration of people with a disability in the selected group is due to previous discrimination for which the employer concerned has responsibility. The principles indicated by the Australian Iron and Steel case, for example, where a "last on first off" selection for redundancies was held to involve indirect sex discrimination, on the basis that the women complainants had been prevented from being hired earlier by directly discriminatory policies, also appear applicable to the DDA, and would include the results of discrimination in opportunities for promotion, transfer, or development of skills or increased productivity as well as in hiring practices. The discussion of these issues and of reasonable adjustment more generally earlier in this paper are thus also relevant to issues regarding dismissal.

Also relevant to dismissal are issues in relation to standards of unacceptable behaviour.

As noted earlier, however, it may be that requirements which are reasonable when considered as the basis for other actions will not be accepted as reasonable when considered as the basis for dismissal, at least (in some cases) without prior warning, availability of counselling or other reasonable adjustments.

Interested parties may wish to give particular consideration, therefore, to whether any more specific provision should be made regarding circumstances when a rule or other condition or requirement justifies dismissal.

Summary of Issues for Discussion

(Numbers with each question refer to the section of this paper where relevant issues are discussed.)

General issues

Should DDA Standards in relation to employment be introduced under the DDA?

Should DDA Standards contain timetables for implementation? (2.2)

What, if any, amendments to the DDA should be considered to deal with present limitations in the power to make DDA Standards? In particular, should DDA Standards be able to cover contract work and other similar arrangements rather than just employment? (3)

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 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 (4.4)

Exceptions and exemptions (4.5)

Should DDA Standards provide for exceptions 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;

Unjustifiable hardship (5)

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 to be taken into account?

In particular, where a possible detriment concerns health, safety, environmental or similar concerns, is a test such as the "direct threat" test under the Americans with Disabilities Act appropriate?

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?

Reasonable adjustment (6)

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?

State and Territory equal opportunity laws (7.1)

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

Unfair dismissal laws (7.2)

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

Review and monitoring of DDA Standards (8.1)

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?

Information, education and promotional programs (8.2)

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?

Reporting requirements (9)

Non-discriminatory access to job information (10.1 - 10.3)

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 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?

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?

Should DDA Standards on employment cover information provision by employment agencies? Should any such Standards apply to all employment agencies alike, or should specific Standards apply to the Commonwealth Employment Service and other Commonwealth programs in this area?

Content of job advertisements and information (10.5 - 10.6)

Should DDA Standards contain provisions on discriminatory terms in job advertisements and information? If so, what should be permitted or prohibited and how should this relate to inherent job requirements?

Should DDA Standards contain any positive requirements to provide information on rights to equal employment opportunity? If so, what sort of information should be required? Should such requirements apply to job advertisements, or at later stages?

Application forms and questions (11)

Should Disability Standard contain specific provisions on permitted or prohibited questions related to disability in application forms or interviews? If so, what should these provisions be?

Should routine questions be treated differently from non-routine questions?

Should questions about disability be permitted if the question is reasonable, or is for a reasonable purpose, or is not for a discriminatory purpose, or only if the question is strictly necessary?

Should questions about disability be permitted at any stage, or only at a particular stage such as once a conditional job offer has been made?

Should questions about disability be permitted for the purpose of determining superannuation entitlements, and if so at what stage?

Should DDA Standards specifically permit questions to identify reasonable adjustments needed? If so, when and in what form should such questions be permitted?

What if any questions about past history of disability should be permitted, and at what stage, including questions regarding prior workers' compensation claims?

Interview and selection processes (12)

How can DDA Standards make rights and obligations clearer on non-discriminatory interview and selection processes?

What provisions should DDA Standards contain on accessibility of interview venues? Should these provisions require accessibility in all cases, only where requested, only where reasonable, or regarding specified employers?

Should DDA Standards contain specific provisions, and if so what, on methods of conducting interviews?

Should DDA Standards contain specific provisions, and if so what, on tests for job applicants?

Selection criteria and job descriptions (12.3)

Should DDA Standards contain specific provisions, and if so what, on selection criteria?

What evidence and factors should be taken into account in determining what are the inherent requirements of a job and what weight should be given to different factors and evidence?

What relationship should DDA Standards in this area have to competency based assessment systems?

What weight should be given to awards and enterprise agreements?

What should be done to consider possible reasonable adjustments before specifying selection criteria?

What criteria (if any), other than ability to perform the inherent requirements of the job, are reasonable to include and should be permitted?

In particular, may employers ask questions about abilities or functions which are desirable but not essential?

Can DDA Standards give any more definition to what is "reasonable" in this area, so that this concept does not either undermine the emphasis of the DDA on inherent requirements, or leave employers in an unacceptably uncertain or restricted position?

Are there some types of criteria which DDA Standards should specify are not to be used except where required by the inherent requirements of the job, in more specifically designated circumstances, or at all?

How closely do selection criteria and procedures need to be related to inherent requirements (or other permitted bases for decision)?

Medical questions and examinations (12.4)

What medical questions and examinations should be permitted or prohibited by DDA Standards?

Should medical questions and examinations be permitted before a job offer is made?

Should routine medical questions or examinations be permitted, or only in specific circumstances showing a need for such inquiries?

When, if ever, should DDA Standards permit a medical examination of a person with a disability if such examinations are not conducted as a matter of routine for all applicants?

When, if ever, should DDA Standards permit an employer to make inquiries of conduct medical examinations to determine whether a person has a disability, including disabilities related to infectious diseases?

Should medical questions and examinations, if permitted, be restricted to examining abilities relevant to the inherent requirements of the job?

Should medical questions and examinations be permitted in relation to other specified issues such as workers' compensation, superannuation, occupational health and safety issues and identification of reasonable adjustments?

Should employers be permitted to conduct general medical examinations and be restricted only in the use to be made of the results of such examinations?

What provisions should DDA Standards contain regarding confidentiality of medical records?

Should DDA Standards make any provision, and if so in what terms, on what happens if answers to medical questions are later found to be false, incomplete or misleading?

Should DDA Standards contain provisions, and if so what should these be, on what purposes disability related information more generally can be used for and how confidential information should be protected?

Harassment (13)

What provision should DDA Standards make in relation to disability harassment? How should unlawful disability harassment be defined? How should any disability harassment provisions relate to provisions regarding permitted or prohibited questions?

Terms and conditions of employment (14)

Should DDA Standards contain an equivalent exemption to that contained in the existing DDA provisions regarding productivity based wage modification?

What provision should DDA Standards make regarding standards of quality and level of performance of inherent requirements?

Should DDA Standards contain provisions, and if so in what terms, regarding permissible policies or actions concerning behaviour of employees?

What provision should DDA Standards make in relation to health and safety issues? In particular, what level or types of risks would justify measures adverse to equal opportunity for a person with a disability ? What evidence should be required or permissible, and who should judge, that the activity in question involves such a risk regarding the person with a disability? What risks should an employee with a disability be able to assume?

What provision should DDA Standards make regarding work equipment? Should this include provisions, and if so what, regarding which matters employees and employers are responsible for?

What provision should DDA Standards make regarding equality and access in work environment and work related facilities?

Should DDA Standards make specific provision, and if so in what terms, regarding use of leave entitlements?

What provision should DDA Standards make regarding use of past history of workers' compensation claims?

What provision should DDA Standards make regarding direct or indirect limitations in workers' compensation entitlements for people with a particular disability?

What if any provision should DDA Standards make regarding superannuation entitlements: in particular, regarding the effect of the existing superannuation and insurance exemption; reduced entitlements as a result of prior discrimination; exclusion or limitation of entitlements regarding a particular disability; the relationship of the DDA to the Superannuation Guarantee legislation; or the relationship of superannuation eligibility to decisions whether to employ a person?

Training and promotion opportunities (15)

What provision should be made by DDA Standards regarding opportunities for promotion, transfer or training? In particular, should specific provision be made regarding accessibility of training, or regarding additional training as a form of reasonable adjustment?

Other work-related benefits or detriment (16)

What provision should DDA Standards make regarding benefits associated with employment?

What provision should DDA Standards make regarding any other forms of detriment not already specified?

Dismissal and termination of employment (17)

What provision should DDA Standards make in relation to discrimination regarding dismissal?

Issues not discussed in this paper

Are there other issues in relation to DDA Standards in relation to employment which should be considered, in addition to those discussed in this paper?

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

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