Australia: Workplace Relations & Safety: Developments in discrimination law

Last Updated: 8 February 2017
Article by Chris Woolard (formerly with Holding Redlich)

Most Read Contributor in Australia, November 2018

In 2016, we saw courts and Tribunals refine how an employer should assess what constitutes reasonable adjustment under the discrimination laws. This is an important consideration for both Government and businesses.

The two cases below show the development in this area between 2015 and 2016.

Huntley v State of New South Wales, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 (3 July 2015)

Ms Huntley was a probation and parole officer, who had been diagnosed with inflammatory bowel disease and consequently, required time off work and had restrictions on travel. After taking a period of leave for surgery, Ms Huntley returned to work and was placed on an informal return to work plan. This was discontinued as it affected operations. The employee was referred for medical assessment of her fitness to perform the role, and it was determined she was unfit. However, the medical officer had not been informed of the inherent requirements for the role, or asked to identify what reasonable adjustments could be made. Ms Huntley was given the option of medical retirement or redeployment to a role within a gaol.

The Court found that the employer had failed to provide reasonable adjustments to Ms Huntley's position. She was given an ultimatum that she either be medically retired or would need to be found fit to return to her previous position which was put to her without notice and without consultation. When referring Ms Huntley for a medical assessment, the employer failed to properly inform the medical practitioner which requirements were inherent to the role and did not ask her to suggest any reasonable adjustments to the role, simply asking whether Ms Huntley was "fit" to perform her current role.

The Court ordered compensation of $98,863.89 for economic loss and $75,000 for general damages.

Sklavos v Australian College of Dermatologists [2016] FCA 179

Mr Sklavos was a registered medical practitioner who sought to gain entry into the Australasian College of Dermatologists. He was admitted as a trainee of the College but was given an unsatisfactory performance review and was subjected to a performance improvement requirement. He was invited to take the clinical examinations, which he did not pass.

Mr Sklavos alleged that the College engaged in disability discrimination and that it could made the reasonable adjustment of assessment by a method other than examinations, for instance workplace-based assessment, or modified examinations.

The Court found that the requirement to pass its examinations was applied by the College to all trainees and thus Mr Sklavos had not been treated less favourably than a person without the disability would be treated in circumstances that are not materially different. The College did not make the adjustment because it was not satisfied that Mr Sklavos was competent to practice as a dermatologist. His disability was irrelevant to the position of the College in refusing to make an adjustment. The Court was satisfied that any adjustment which involved Mr Sklavos not having to sit for the whole or part of the written examination would impose an unjustifiable hardship on the College and any future patients of Mr Sklavos.

The application was dismissed.

Return of the Australian Building and Construction Commission

The Building and Construction Industry (Improving Productivity) Bill 2013 (the Bill) was passed in the Senate late 2016.

The Bill will see the restoration of the Australian Building and Construction Commission (ABCC) as the construction industry watchdog and regulator. The ABCC Commissioner will need to enforce the requirements of the Fair Work Act 2009 (Cth) on wages and entitlements, general protections, including the protection of freedom of association and prohibitions on coercion, discrimination, sham contracting arrangements, industrial action, strike pay and right of entry.

The Bill includes building industry specific provisions relating to unlawful action and coercion and restores the higher penalties for contravention of those provisions. The maximum civil penalties that can be imposed will be tripled, seeing civil penalties for individuals increased to $36,000 and for body corporates increased to $180,000.

There will also be new procurement rules applying to projects worth more than $4 million, requiring builders tendering for government work to provide information on local content and compliance with Australian standards.

There will also be amendments which will require the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (the Code) to include provisions that seek to give preference to Australian workers, rather than those workers employed subject to visas.

The new Code sets out the standards of workplace relations conduct expected from contractors that want to perform work funded by the Commonwealth Government. Contractors will be required to meet the requirements of the new Code in order to be eligible to work on Commonwealth-funded projects.

Builders in the construction industry will be able to have non-compliant enterprise agreements in place for a further 2 year period, expiring in November 2018. The ABCC Commissioner will also have powers to require a person to give information, produce documents or answer questions relating to an investigation of a suspected contravention of the Act, or a designated building law by a building industry participant. The ABCC Commissioner will have powers to require persons to participate in an examination.

If the new laws apply to you, we can:

  1. advise on enterprise agreements;
  2. advise on, or review processes for engaging with ABCC inspectors; and/or
  3. train project managers and supervisors on their rights and obligations under the new legislation.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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