Existing regulatory framework

30.4 The Disability Discrimination Act 1992 (Cth) (DDA) and the Human Rights and Equal Opportunity Commission Act 1984 (Cth) (HREOC Act)are the most relevant pieces of legislation regulating discrimination in employment on the basis of genetic status. The HREOC Act provides that the Human Rights and Equal Opportunity Commission (HREOC) may inquire into any act or practice, including any systemic practice, that has the effect of nullifying or impairing equality of opportunity or treatment in employment on a wide range of grounds. This is one mechanism for reviewing systemic discrimination on the basis of genetic status in the future. The Sex Discrimination Act 1984 (Cth) (SDA) and the Racial Discrimination Act 1975 (Cth) (RDA) may also have some application, depending on the nature of the genetic information under consideration (see Chapter 9).

30.5 These Acts prohibit employers from discriminating against job applicants or employees on the basis of the grounds set out in each Act. In general, an employer must not discriminate in:

    • the selection process;

    • the terms and conditions on which a job is offered;

    • the terms and conditions offered during the course of employment;

    • the training and promotion opportunities provided; or

    • the termination of employment.

30.6 In addition, the Workplace Relations Act 1996 (Cth) (WRA) prohibits discrimination on a range of grounds in terminating employment.

Disability Discrimination Act

30.7 The DDA prohibits an employer from discriminating against a job applicant or an employee based on his or her disability. There is some doubt about whether the definition of ‘disability’ in the DDA is currently wide enough to include genetic status. In the Inquiry’s view, discrimination on the basis of genetic status should be covered by the DDA, and other relevant legislation, and the recommendations in Chapter 9 are intended to clarify the issue.

30.8 The employment provisions of the DDA attempt to balance the interests of employers, employees and the community. While disability will often have no impact on a person’s ability to work, the legislation expressly acknowledges that in some circumstances it may do so. It is not unlawful to discriminate if a person is unable to carry out the ‘inherent requirements’ of a job because of his or her disability, or if it would impose ‘unjustifiable hardship’ on the employer to provide services or facilities that would enable the person to do the job. The effect of these provisions is that employers are required to make reasonable accommodation for a person’s disability.

30.9 The DDA employment provisions do not apply to employment in the Australian Defence Forces in combat-related positions or the Australian Federal Police as part of a peacekeeping force.[2] In other respects, the provisions are of wide application and will apply to most private and public sector employment.

30.10 Under s 31 of the DDA, the Attorney-General may formulate Disability Standards which, once tabled before Parliament for a certain period, gain the force of law.[3] Currently there are no standards in force in relation to employment. Draft standards have been prepared by HREOC in a process involving representatives of industry, people with disabilities and government. The process is not proceeding, however, as it has not been possible to reach a consensus on the adoption of the standards.[4]

Workplace Relations Act

30.11 The WRA makes it unlawful for an employer to terminate an individual’s employment as a result of a range of factors including race, colour, sex, sexual preference, physical or mental disability, national extraction or social origin.[5] The employer may do so, however, when this factor renders the employee unable to fulfil the ‘inherent requirements’ of a particular position.[6]

30.12 There are several differences between the protection offered by the DDA and the WRA. The WRA applies only in relation to termination of employment. It also excludes some employees; for example, those still in their probationary period, those employed on a casual basis for a short period or a specific task, and those employed under a traineeship agreement.[7] In addition, the WRA does not include an ‘unjustifiable hardship’ provision and so does not appear to impose a requirement that the employer attempt to accommodate the employee’s disability. The courts will, however, generally consider whether the employer has acted reasonably in the circumstances and any accommodation made by the employer, or failure to do so, may be considered in this context. Finally, the WRA does not contain a definition of ‘physical or mental disability’ and does not expressly extend to past, imputed or possible future disabilities, as does the DDA.

30.13 In one respect the protection offered by the WRA is more robust than that offered by the DDA. Once discrimination is raised as an issue under the WRA, the onus is on the employer to establish that it had a valid reason for dismissal. By contrast, under the DDA the onus is on the complainant to establish discrimination and this can be difficult in some cases.[8]

Occupational health and safety legislation

30.14 The use of genetic information for the purposes of occupational health and safety is discussed in detail in Chapter 32. It is necessary at this point, however, to consider the role of occupational health and safety legislation and how that legislation intersects with the anti-discrimination regime. Employers may use genetic information to assist them to meet their obligations under occupational health and safety legislation; for example, by monitoring the effect of hazardous substances in the workplace on the health of employees. Action taken as a consequence of monitoring, such as moving an employee to a different position with a lower level of exposure may, however, be discriminatory, or perceived to be so.

30.15 The Commonwealth and all States and Territories have occupational health and safety legislation. Some state and territory anti-discrimination legislation provides that, if an employer does something that is necessary to comply with other legislation, that act is not unlawful.[9] This suggests that compliance with occupational health and safety legislation might, in some circumstances, justify conduct that would otherwise amount to unlawful discrimination. However, it is unlikely that a discriminatory response would be regarded as ‘necessary’ if the occupational health and safety requirements could be met without acting in a discriminatory way. HREOC states in its guidelines for employers that:

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.[10]

30.16 The DDA no longer contains a general exemption for acts that are necessary to comply with other legislation. Section 47(3) did provide an exemption of this kind but the provision ceased to have effect on 1 March 1996. Instead, s 47(2) now provides:

This Part does not render unlawful anything done by a person in direct compliance with a prescribed law.

30.17 Commonwealth regulations do prescribe some state and territory laws under s 47(2), but occupational health and safety legislation is not amongst them. It is possible, therefore, that some conduct that is required by state occupational health and safety legislation may contravene the DDA.

30.18 HREOC’s stated position on the relationship between occupational health and safety laws and the DDA is that:

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 …[11]

30.19 The DDA thus appears to have the effect of requiring employers to meet occupational health and safety obligations in ways that are not discriminatory. Section 15(4) of the DDA also requires employers to provide reasonable services and facilities to assist a person with a disability to do a particular job safely.

30.20 It will usually be possible for employers to comply with their obligations under occupational health and safety legislation without bringing them into conflict with the DDA. Where this is not possible, or it would impose unjustifiable hardship on an employer to provide services or facilities that would make it possible for an employee to do the job without posing a risk to themselves or others, the employer is likely to be protected by the ‘inherent requirements’ defence in s 15(4).

30.21 In addition, an employer can seek a temporary exemption under s 55 of the DDA for acts done in compliance with occupational health and safety legislation, which are possibly inconsistent with the DDA. This would be appropriate where an employer requires a period of time to make adjustments to bring the workplace into line with the DDA. Temporary exemptions from the operation of the SDA have been granted to employers in the lead industry to allow them to lawfully exclude pregnant and breastfeeding women from lead risk jobs.[12]

[2]Disability Discrimination Act 1992 (Cth) ss 53–54.

[3] See Ch 9.

[4] Disability Standards Sub-Committee of the National Committee on Discrimination in Employment and Occupation, Disability Standards Under the Disability Discrimination Act Regarding Employment (Revised Draft), <www.hreoc.gov.au/disability_rights/standards/Employment_draft/employment_draft.
html> 19 February 2003.

[5]Workplace Relations Act 1996 (Cth) s 170CK(2)(f). Under s 170CE(1)(a), an employee may also apply to the Commission for relief if his or her termination was harsh, unjust or unreasonable.

[6] Ibid s 170CK(3).

[7]Workplace Relations Regulations 1996 (Cth) r 30B(1).

[8] See M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart [2.10].

[9] See Anti-Discrimination Act 1977 (NSW) s 54; Equal Opportunity Act 1995 (Vic) s 69; Anti-Discrimination Act 1991 (Qld) s 106; Equal Opportunity Act 1984 (WA) s 69(1)(a); Discrimination Act 1991 (ACT) s 30; Anti-Discrimination Act 1992 (NT) s 53.

[10] Human Rights and Equal Opportunity Commission, Frequently Asked Questions: Employment, <www.
hreoc.gov.au/disability_rights/faq/Employment/employment_faq_1.html#questions>, 19 February 2003.

[11] Ibid. In X v Commonwealth (1999) 200 CLR 177 the High Court expressed the view that the inherent requirements of a job include a duty not to expose others to a real risk of injury.

[12] Human Rights and Equal Opportunity Commission, Pregnant and Productive: It’s a Right Not a Priv-ilege to Work While Pregnant (1999), Human Rights and Equal Opportunity Commission, Sydney [9.51].