Submission: National Inquiry into Employment Discrimination against Older Australians and Australians with Disability

The reliance on individual complainants to take action in response to discrimination and harassment is both a considerable burden for often vulnerable individuals and an inefficient approach to achieving more accessible and inclusive workplaces and employment practices throughout Australia.

We have also outlined barriers to individuals in accessing remedies via the Disability and Age Discrimination Acts and proposed specific amendments to the legislation.

Commonwealth anti-discrimination law limits the ability of people with disability to exercise legal capacity by providing reactive remedies to disability discrimination, not comprehensively protecting people from harassment on the grounds of disability, and placing the burden of proof in disability discrimination claims on people with disability.

Our recommendations to the Inquiry include specific amendments to the Disability Discrimination Act 1992 (Cth) and Fair Work Act 2009 (Cth).

Disability Discrimination Act 1992 (Cth)

• Remove the comparator test from the DD Act.
• Include a definition of “harassment” in the DD Act.
• Amend the DD Act so as to prohibit harassment on the grounds of disability across all protected areas of life.
• Impose a positive duty to prevent discrimination under the DD Act.
• Amend the DD Act so that the respondent bears the onus of proof once the applicant establishes a prima facie case of disability discrimination.

Fair Work Act 2009 (Cth)

• Amend the FW Act to include a definition of “disability” which is consistent with the definition of “disability” in DD Act.
• Expand the list of circumstances the FWC can take into account in deciding whether to permit an extension of time to lodge a general protections claim relating to termination of employment to include the effects of a person’s disability.
• Amend the FW Act to include a positive duty on employers and organisations to take reasonable and proportionate measures to eliminate discrimination as far as possible, in the National Employment Standards.

Read RLC’s full submission to Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability here.