7 May 2013 Disabled Employees

By Warwick Ryan, Partner and Laura Sowden, Solicitor

In Brief

People often judge a book by its cover and this still applies when it comes to the judgments we make about each other. In light of the proposed anti discrimination legislation, this article outlines what disability discrimination is, the exceptions which allow discrimination and how the supported wage system assists with the employment of disabled persons.

What is a disability?

The Federal Disability Discrimination Act 1992 (Cth) defines "disability" as:

  • total or partial loss of the person's bodily or mental functions;
  • total or partial loss of a part of the body;
  • the presence in the body of organisms causing disease or illness;  
  • the presence in the body of organisms capable of causing disease or illness;
  • the malfunction, malformation or disfigurement of a part of the person's body;
  • a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
  • a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

As is seen above the spectrum of what constitutes a disability is quite broad, probably broader than many realise and includes physical and mental conditions. To have a disability can mean something the person currently has, used to have, may have in the future or is attributed to them.

What is disability discrimination?

Disability discrimination in employment is unlawful under state and federal legislation. This means it is unlawful to discriminate against someone:

  • in arrangements made to decide who should be offered employment;
  • in deciding who should be offered employment;
  • in conditions on which employment is offered;
  • in conditions of employment given to the employee;
  • by denying the employee access (or limiting the employee's access) to opportunities for promotion, transfer, training, or other benefits;
  • by dismissing the employee; or
  • by subjecting the employee to any other detriment.

In the above areas of employment it is unlawful to treat a person less favourably than another person, in the same or similar circumstances because of their disability. It is also unlawful to have an apparently neutral policy, rule or practice which has a negative impact on a substantially higher proportion of people with disability and the policy or practice is unreasonable in the circumstances.

Under the Federal legislation it is important to note that it is discriminatory if an employer does not make reasonable adjustments for the disabled person and in not making those adjustments treat that person less favourably.  

It is also vital to understand that it is not necessary that the person's disability be the dominant reason or a substantial reason for the treatment. That is, disability can be one of the reasons and need not be the main reason.

Exceptions: when is disability discrimination lawful?

There are two exceptions which allow discrimination on the basis of disability.

Unjustifiable Hardship
It is lawful for an employer to discriminate against someone on the basis of their disability if avoiding the discrimination would cause an unjustifiable hardship on the employer. The factors taken into account in determining whether the employer would suffer unjustifiable hardship include:

  • the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
  • the effect of the disability of any person concerned;
  • the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
  • the availability of financial and other assistance to the first person; and
  • any action plans produced by the Australia Human Rights Commission.

Inherent Requirements
If the employee or prospective employee would be unable to perform the inherent requirements of the job even if the employer made reasonable adjustments to assist them then it is lawful to discriminate against that person. In considering whether something is a reasonable adjustment a Court will examine whether the adjustment would impose unjustifiable hardship on the employer.

What is the supported wage system?

Industrial awards have specific provisions which provide that employees with a disability receive wages on a sliding scale according to their ability to perform the work. Individuals whose productive work capacity is reduced by reason of disability can be paid a productivity wage.

The supported wage system is a system which through a National Panel of Assessors asses the productivity of employees with disabilities. An assessment is then used to calculate a corresponding wage.

To be eligible for the supported wage system:

  • the employee's work must be covered by an industrial award or enterprise agreement which includes a provision for the supported wage system;
  • the employee is an Australia citizen or a permanent resident;
  • the employee is 15 years or over;
  • the employee has no outstanding workers compensation claim against the employer;
  • the employee meets the impairment criteria for the Disability Support Pension; and
  • the job is for 8 hours or more per week.

It is important to note that supported wage can only be paid if an assessment is carried out by the National Panel. The assessment process does not cost the employer, it is Government funded.

Example: If the employer makes an application for an assessment and the employee's productivity is assessed at 70 per cent compared with their peers then the employer can legally pay the employee 70 per cent of award wages.

The supported wage system enables people with disabilities to compete in the market place and encourages employers to consider employing people with disabilities. There are a number of employment agencies which specialise in disability employment.

What to take away
  • people with a disability are protected from discrimination in the workplace
  • employers need to be aware of their obligations under discrimination legislation
  • hiring disabled employees with limited capacity is financially viable under the supported wage system

If you have any questions or are considering hiring a disabled employee please contact:

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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