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Risky Business?

Disability Disability Rights

Risky Business? Occupational
Health and Safety and the Disability Discrimination Act

Dr Sev Ozdowski OAM,
Acting Disability Discrimination Commissioner

Employers Making a Difference seminar
Sydney 27 October 2004

Sev Ozdowski

Introduction and acknowledgments

Thank you, and my congratulations to Suzanne Colbert and Employers Making
A Difference for organising this event.

Allow me to commence by acknowledging the traditional owners of the land
on which we meet, the Gadigal people of the Eora nation.

I make this acknowledgment in all my public presentations, because recognising
the indigenous history of this land is an important element in recognising
the truth of our diversity as a people.

Recognition of our diversity is particularly important in discussing
issues in relation to disability. Because there still often seems to be
a lack of recognition that people with a disability are an inherent part
of the diversity of the Australian community, including in the workforce.

Employment a major focus of HREOC resources

I want to just mention that the Commission is launching a range of new
resources for employers in November 2004.

The 'Good Practice, Good Business' Employer's Pack will provide employers
with a range of resources to assist them in addressing discrimination
and harassment in the workplace, including:

  • outlining their responsibilities under anti-discrimination law
  • developing effective workplace policies and best practice guidelines
  • establishing and implementing complaints procedures in the workplace,
  • links to useful publications and websites, including our own newly
    updated 'Information for Employers' website available online at www.humanrights.gov.au/employers.

Disability resources

The Commission also has a range of materials relating more specifically
to disability. These are available on www.humanrights.gov.au and I have
also made some available in their paper forms for distribution at this
conference.

At a general level these include a review which I published last year
of the operation of the DDA in its first ten years, and an introductory
pamphlet on the DDA.

We have tried to make available material which explains the law in simple
and non-technical terms: for example the pamphlet summarises discrimination
and disability as follows:

"Discrimination happens when a person is treated less fairly than
a person without a disability. It also happens when someone is treated
less fairly because they are a relative, friend, carer, co-worker or
associate of a person with a disability."
"The definition of disability used in the Act is broad, It includes
physical, intellectual, psychiatric, sensory, neurological and learning
disabilities. It also includes physical disfigurement and the presence
in the body of disease-causing organisms such as the HIV virus. The
Act covers disabilities that people have now, had in the past, may have
in the future or which they are believed to have."

The pamphlet also includes some material on equal opportunity for people
with disabilities in the workplace. It reminds employers that

A person with a disability has a right to the same employment opportunities
as a person without a disability.

If a person with a disability can perform the inherent requirements
of a job then they should have an equal opportunity to do that job.
In some cases an employer may need to make some workplace changes so
that the employee can best perform the job, such as providing an enlarged
computer screen or installing ramps.

Employers are not required to make workplace changes if it would cause
major difficulties or unreasonable costs. This is called "unjustifiable
hardship". However, employers need to show how making those changes
would cause unjustifiable hardship.

Employers should also have policies and programs to prevent discrimination
and harassment in the workplace.

Risky business?

We have a range of much more detailed resources in the employment section
of the disability rights area of the Commission's website.

One of the paradoxes for organisations like the Human Rights and Equal
Opportunity Commission, or like Employers Making a Difference, in advocating
for greater opportunity for people with disabilities in employment, is
that we often sound as if we are asking employers to experiment with something
new and risky in employing people with a disability.

I was happy to take Suzanne's suggestion of "Risky Business?"
as the title for my remarks but I hope that everyone will note that there
is a question mark in that title.

The reality of course is that people with disabilities are there in the
workforce and workplace now.

People with disabilities are part of your workforce
now

Even without discussing disabilities acquired through workplace injuries,
just the high rate of mental health conditions now increasingly recognised
as occurring in the community - as many as one in five of us during our
lives - makes it almost inevitable that every employer at some point will
deal with, or fail to deal with, disability issues.

Similarly, there are recent indications that the rate of significant
hearing loss in the community may be as high as 20%.

Add to this the increasing number of people recognised as having difficulties
in learning or reading, and it should be clear that we are not only talking
about smaller groups of people with more readily recognised disabilities,
such as people who are completely deaf or blind or who use a wheelchair
or have an intellectual disability.

In talking about disability in relation to any employment issue, including
occupational health and safety, we are really talking about recognising
and dealing with the diversity of the workforce and community as it is
now, not proposing some untested radical social experiment.

Under-investment in people with disabilities as employees

Of course, advocates of equal opportunity are interested in achieving
change, in the direction of increasing opportunities - as a matter of
human rights or as a matter of rational economic policy.

Unemployment rates for people with disabilities are twice those for the
rest of the community, while workforce participation rates are 30% less.

The ABS figures for 2000 indicate that when the general unemployment
rate was 6%, the unemployment rate for people with disabilities was 13%.
The general labour force participation rate for people of working age
was 80% but the corresponding rate for people with disabilities was only
53%.

Mr Mark Bagshaw, that tireless proponent of the economic rationalist
case for an inclusive society, has estimated that on these figures government
was spending over $11 billion on paying people not to work - while the
Australian community was losing $41 billion of lost potential productivity.

At the same time, he was only able to identify half a billion dollars
spent on targeted measures to increase employment of people with disabilities
- including frankly quite tiny amounts on the workplace modifications,
wage subsidy and supported wage schemes.

More recently ACROD, the disability services industry association, has
advised me that for every dollar spent on disability support payments
there is five cents being spent on disability employment assistance.

Welfare reform and participation costs

Media commentators on the recent election result have noted that, with
the changed composition of the Senate, welfare reform in relation to disability
pensions may now progress.

If that is the case, I would hope that we might see some discussion of
how better to meet the costs of participation for people with disabilities,
and costs of disability related adjustments for employers.

I am concerned that it is too easy for the issue being approached only
in terms of pushing people back to work by reducing or taking away benefits
for those assessed as capable of working.

Possible public inquiry

You may be aware that I have been seeking views on the possibility of
the Human Rights and Equal Opportunity Commission conducting an inquiry
on issues affecting employment opportunity and outcomes for people with
disabilities.

This would follow on from the recent Productivity Commission review of
the DDA. That review was broader - in that it dealt with all issues covered
by the DDA - but also narrower - in that focussed on the legislation rather
than on all the other factors which may affect employment in practice.

The Commission is yet to make a decision, but comments received so far
have strongly supported conducting such an inquiry.

OHS issues raised as possible issue for inquiry

A number of comments have pointed to concerns around occupational health
and safety as a major barrier to people with disabilities both in retaining
and gaining employment.

Concerns have been referred to both in terms of employer perceptions
and in terms of approaches recommended by some OHS authorities seen as
effectively requiring the exclusion of people with disabilities as a means
of eliminating or managing risks.

Disability organisations have indicated that these issues are leading
to a lack of opportunities both directly in gaining work and also indirectly
by preventing people gaining practical training and work experience.

Industry bodies have indicated concerns about conflicting or competing
obligations under different laws.

It is not my intention of course to prejudge the results of an inquiry
which we have not yet commenced, much less concluded.

Nor do I want to pre-empt the results of today's discussion which we
are yet to have.

Things I am not saying

So I want to point to a few things I am not saying.

  • I am not saying that OHS issues are not real or can simply be ignored
  • I am not saying that equal opportunity takes precedence over health
    and safety as a matter of law or policy
  • I am not saying that the regulatory position in terms of the interaction
    between equal opportunity and health and safety is as perfectly clear
    and simple as it could be, and that employers just need to understand
    a pep talk from someone in my position for there to be no more problems.

But I would like to state some challenges, or questions:

  • Are occupational health and safety approaches being promoted or permitted
    which eliminate workers seen as particularly risky, instead of making
    work safer for all workers?
  • Are zero tolerance approaches appropriate in ordinary workplaces or
    only for exceptionally hazardous settings?
  • Are safety issues really about absolutes or are they actually about
    reasonableness and balancing risks in the same way that discrimination
    law is about reasonableness?

Outcomes from discussions today

What I would hope for from today are two things:

  • a positive message overall, in looking towards how safety can be properly
    assured with people being included as far as possible rather than excluded;
    and
  • progress in identifying where the difficulties are in the relationship
    between discrimination law and occupational health and safety obligations,
    and how to address those difficulties.

It will I hope be clear that I am not dismissing there being difficulties
which need addressing,

  • whether by better information; or
  • by legislative or regulatory moves to provide more certainty in the
    relationship between the occupational health and safety regime and the
    discrimination law regime; or
  • by other measures to address perceived additional risks and associated
    costs.

At the same time, I should emphasise that HREOC has never seen the DDA
and OH&S obligations as fundamentally conflicting

As you would all be aware the DDA itself does not set out in detail how
it relates to health and safety issues.

But we have set out what I think are fairly clear views on our website
taking into account the terms of the DDA and relevant case law. Let me
run briefly through the points stated there.

People with a disability are entitled to equal protection
of health and safety

First, people with a disability are equally entitled to equal protection
of health and safety.

The DDA does not embody an extreme "dignity of risk" position
allowing or requiring employees with disabilities or employers to waive
normal OH&S obligations in the interests of increasing employment
opportunities.

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.

It is important to remember that 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, our view is that concurrent and similar obligations
arise under the DDA and under occupational health and safety legislation.

A person who cannot work safely does not meet the inherent
requirements of the job

Second, a person who cannot work safely does not meet the inherent requirements
of the job.

The DDA provides that a person who cannot perform the inherent requirements
of the job need not be employed, and may be dismissed, without unlawful
discrimination occurring.

Meeting reasonable occupational health and safety standards must be accepted
as being among the inherent requirements of any job.

There may have been an unfortunate lack of clarity on this in some decisions
from HREOC and other agencies early in the life of the DDA. But the true
position was made clear by the decision of the High Court in 1999 in X
v The Commonwealth
where all the Justices emphasised that the inherent
requirements of a job are not restricted to performance of the physical
tasks involved. Justice McHugh commented:

"It would be extremely artificial to draw a distinction between
a physical capability to perform a task and the safety factors relevant
to that task in determining the inherent requirements of any particular
employment. That is because employment is not a mere physical activity
in which the employee participates as an automaton. It takes place in
a social, legal and economic context."

As noted on our website, previous to this the ability to work safely
had already been noted by the Commission as an inherent requirement in
a number of decisions by my colleague Graeme Innes.

However, this does not include restrictions or exclusions which are not
justified by real risks or for which there are less restrictive alternatives
reasonably available.
In deciding whether a person can meet inherent requirements, possible
reasonable adjustment must be taken into account

In determining whether a person can perform the inherent requirements
of a job, the Commission and the courts are required to consider whether
the person could perform these requirements if some adjustment is made,
including adjustments to facilities, equipment, work practices or training.

If such an adjustment would be effective it must be made, unless it would
impose unjustifiable hardship on the employer or other affected parties.

In the occupational health and safety area, reasonable adjustment might
involve changes to make work safer for all employees. For example, safer
manual handling practices, or substitutes for manual handling, make work
safer for all employees as well as removing some barriers to workers with
pre-existing injuries or disabilities.

Other adjustments might address more specifically the needs of workers
with a disability.

Health and safety must be protected by non-discriminatory
means wherever possible.

The Federal Court is unlikely to accept that an exclusion or restriction
on health and safety grounds is justified by the inherent requirements
of the job where a non-discriminatory solution to the same issue is reasonably
available.

We saw this in the DDA case of Daghlian v Australia Post last
year. The same view has been taken by the NSW Administrative Decisions
Tribunal in applying the NSW Anti-Discrimination Act (for example in the
case of Higginson v Cargill Australia Limited in 2001).

No doubt there will be more discussion of the case law throughout the
day but allow me to summarise the Daghlian case briefly.

Mrs Daghlian was a post office worker. She had a disability which meant
she sometimes needed to sit down instead of standing behind the counter
all the time. She had used a stool at work for some years. A manager decided
that the stool should be removed, on the basis that it presented a tripping
hazard to employees.

The Federal Court decided that Australia Post had discriminated unlawfully.
Instead of requiring her to work without a stool it should have accepted
its own internal expert recommendations to provide a safer ergonomic stool
and provide a recessed space under the counter.

Of course, that would probably have been much less expensive than all
of the court costs, sick leave payments and other disruption that occurred
instead.

This was a case where on the evidence it would have been pretty simple
to get the relationship between OH&S and anti-discrimination right,
and where you could really say it took a pretty determined effort to get
it so wrong.

More complex cases and legislative reform

As I stated earlier, I am not saying that things are always that simple.

I want to conclude with an example of the perils of legislative reform
and some perhaps more positive possibilities.

There was some controversy last year after the Federal Court confirmed
that addictive disorders were covered within the definition of disability
under the DDA.

The Government introduced a Disability Discrimination Amendment Bill
2003 seeking to prevent people making complaints of discrimination where
their disability was an addiction to prohibited drugs.

Health and safety concerns raised by employers were referred to as one
of the reasons for the Bill. The Attorney General said:

The government believes that people operating a business or a club should
not have to face discrimination claims by drug addicts when trying to
keep the work or social environment safe from other people's behaviour.

In our submission to the Senate Committee examining the Bill we pointed
to the High Court decision in Purvis v NSW which confirmed that it is
not unlawful to take reasonable measures to deal with unacceptable behaviour
whether resulting from a disability or not.

We also pointed to the inherent requirements element of the DDA which
would virtually always justify a requirement not to be adversely affected
by prohibited or other substances at work. We also noted the potential
for confusion in only dealing with prohibited substances, and not with
people being affected by alcohol for example.

We noted difficulties which might arise in practice for employers and
others relying on the Bill, including difficulties in determining whether
a person is addicted to prohibited substances and whether they are undergoing
treatment. We suggested that rather than giving certainty, the effect
of the Bill might actually be to expose employers to greater risk of claims
of discrimination if they make these judgments incorrectly.

The Senate Committee recommended against proceeding with the Bill in
its original form and it was not picked up again prior to the election.

With that case study in mind of a so far unsuccessful attempt to meet
a perceived conflict between safety and discrimination law, I want to
talk very briefly about possible other routes for clarifying the status
of safety issues under the DDA - if and to the extent this clarification
is needed.

The DDA provides that it is not unlawful to take actions which are in
direct compliance with a law prescribed for this purpose by the regulations.

To this point, no jurisdiction has had its occupational health and safety
laws prescribed. This is a possible means of delivering some additional
certainty.

However, this exemption is restricted to situations in which, if the
discriminatory action is not taken, there will be a breach of occupational
health and safety law. If there is an alternative means available of complying
with occupational health and safety requirements, the discriminatory action
will not be protected. So prescribing the existing fairly general health
and safety provisions might not mean any real change in the existing position.

One possibility which was raised in the Productivity Commission review
of the DDA would be to expand this provision to allow for certification
of non-statutory codes. If this were implemented through amendments to
the DDA it might provide a means for confirming the authority of safety
codes applying to particular issues - such as HIV and other blood borne
infections - or particular industries - such as the national code recently
developed on rail safety.

The other route already available to the same result would be to have
codes developed by other bodies adopted as disability standards under
the DDA. Actions in breach of a disability standard are deemed to be unlawful
acts under the DDA, while actions in accordance with a disability standard
are protected from being unlawful acts.

Processes of development of disability standards to date have been long
and complex but this could be less of a problem where development of an
existing code has already involved its own consultative and regulatory
impact assessment processes.

The Commission spent a lot of time with employer, disability community
and trade union representatives in unsuccessful attempts to develop a
general disability standard on employment but more specific standards
on aspects of occupational health and safety could be more productively
attempted if there were some support for such a course.

Conclusion

As I said at the outset I welcome today's seminar as an opportunity for
constructive discussion.

I would be very happy to try to take forward the results from today -
possibly through the process of an inquiry on employment; through better
information if we are able to provide it; and through legislative reform
if needs and support for that can be identified.

I wish you a successful day.