FLIGHT ATTENDANTS ASSOCIATION OF AUSTRALIA
FLIGHT ATTENDANTS ASSOCIATION OF AUSTRALIA
Human Rights & Equal Opportunity Commission
Level 8, Piccadilly Tower
133 Castlereagh Street
SYDNEY
NSW 2000
RE: FLIGHT ATTENDANTS ASSOCIATION OF AUSTRALIA SUBMISSION IN RESPECT OF CIVIL AVIATION SAFETY AUTHORITY APPLICATION FOR EXEMPTION UNDER DISABILITY DISCRIMINATION ACT SECTION 55 AND SEX DISCRIMINATION ACT SECTION 44: CIVIL AVIATION MEDICAL STANDARDS.
The Flight Attendants Association of Australia (FAAA) represents the largest single group within Australian commercial aviation. The FAAA is opposed to the granting of exemption to the Civil Aviation Safety Authority (CASA) with respect to the Disability Discrimination and Sex Discrimination Acts. The Association notes that under HREOC's published policies on exemption applications it is incumbent upon the exemption requestor to demonstrate clear justification to support any such request. The FAAA is not satisfied that the CASA exemption request meets this requirement.
Cabin crew members are required on board Australian registered aircraft pursuant Australia's obligations under Annex 6 - Part 1 of the Convention on International Civil Aviation (Chicago Convention 1944). As a consequence of the Regulatory Reform Program, CASA is currently considering the application of mandatory medical certification standards for Australian cabin crew members.
In response to this proposal CASA has published discussion paper DP 0223FS. The DP states that the requirement for cabin crew medical standards will be mandated under Part 67 of the proposed Civil Aviation Safety Regulations (CASR). Cabin crew medical certification would therefore constitute a mandatory authorisation or qualification, as described within section 19 of the DDA, to undertake or practice the cabin crew profession.
The FAAA contends that the application of such medical standards must be wholly appropriate in all circumstances and respects and must be limited in scope to the safety dimension of the cabin crew role. Moreover, CASA's requirements must be consistent with the broader community's requirements for non-discriminatory and appropriate safety regulation.
As the application of cabin crew medical certification is a human construct, the Association does not believe it is possible for CASA to provide a complete guarantee in this regard. Therefore, legislative protection under the DDA and SDA is essential in order to provide a safety net through access to independent and impartial review of executive decisions.
The FAAA is firmly of the opinion that section 19 of the DDA provides conferring Aviation Authorities, such as CASA and Airservices Australia, with protection against charges of discriminatory action. Under section 19 protection clearly exists with respect to the refusal, withdrawal or the placement of conditions upon an authorisation required to hold a professional qualification if the person, because of his or her disability, would be unable to carry out the inherent requirements of the profession, trade or occupation.
Therefore, extensive technical arguments with respect to a persons ability to carry out the inherent requirements of a profession (such as colour perception ability) are not relevant to the fundamental issue of whether or not the granting of the CASA exemption request is consistent with the objects of the DDA and SDA. The FAAA believes that such arguments serve only to support the protection mechanisms already provided under section 19 of the DDA, and to confirm that it would not be discriminatory for an authorising body to disallow a person from participation in a profession if they could not carry out that profession's inherent requirements.
The FAAA believes that the evolution of the relationship between anti-discrimination legislation and industrial relations laws has been based, in part, on the explicit existence of the full legislative protections provided by mechanisms such as the SDA.
The Association notes that HREOC was made aware in 1999 by the ACTU, in their submission to the HREOC Inquiry into Pregnancy and Work, that award processes cannot be said to deal effectively with discrimination in the work place. The ACTU advised that directly discriminatory provisions within federal awards had been removed as a result of the section 150A process under the previous Industrial Relations Act 1993 and award simplification under the WR Act. The Industrial Relations Commission now requires all awards to include a model anti discrimination clause.
However, the ACTU contended that although this makes it technically possible for prosecutions of discriminatory behaviour to be undertaken, such a case would be extremely difficult to make out. Therefore the ACTU believes, and the FAAA wholly concurs, that the intention of the model anti-discrimination clause was to alert parties to the need to remove discriminatory provisions rather than to provide for enforceable equity requirements. Furthermore, in spite of the existence of this clause within all federal awards, knowledge of prohibitions on discrimination is likely to be based upon the existence of anti-discrimination legislation such as the DDA and SDA, rather than upon award protections.
The Flight Attendants Association of Australia therefore holds the strongest possible view that if conflict exists between the DDA, SDA and the Civil Aviation Act 1988 (CAA), or indeed between the Civil Aviation Act and any other legislative Act (for example, between the CAA and the Occupational Health and Safety Act), such conflict must most properly be resolved by Parliament, and not by HREOC exemption.