Out of Harms Way

1
Out of Harms Way

• The intersection of occupational health and
  safety disability issues in education and
  employment

2
Overview

• OHS and disability in education and employment
  settings
• OHS is on the agenda
• An exploration of the issues
• Initial considerations leading to the development
  of a resource

3
A Quick Note

• I am not an expert
• I am not a solicitor
• There is no formula
• Case law can guide us

OHS
Fear
Risk
DDA
Case Law
Adjustment
Individual
Safety
4
Legislation

• Occupational Health and Safety Act 2000
• Anti Discrimination Act 1977
• Disability Discrimination Act 1992

5
OHS is on the Agenda

• Staff and employers are talking about OHS
• A noticeable shift towards a culture of safety
• A community watching out for each other

6
OHS is a Powerful Force

• New legislation introduced in 2000
• Punishments include significant fines or
  imprisonment
• WorkCover authority increased in strength and
  number
• Vigorous and extensive advertising and awareness
  campaigns

7
Work Cover HREOC

• State wide
• Employer must report
• Work Cover investigates
• Max penalty 550,000 2 years in prison
• New legislation to increase penalties re
  fatalities
• 9,802 complaints (NSW)
• 443 convictions, 19 unsuccessful
• Fines totalled 13 million
• 889 FTE staff
• Funded by industry (levy on workers comp
  premiums)

• Australia wide
• Individual makes a complaint
• Compensation payments average 25,000
• 9,468 (all types nationally)
• 493 DDA complaints in NSW,
• 147 conciliated
• 95 FTE staff
• Independent statutory body

8
The Hurdles

• Lack of positive benefits for employees with
  disabilities
• Negative construction of disability in the OHS
  context
• The fear factor
• Paternalism out of harms way
• An easy out

9
Guidelines from Case Law

• Safety is an inherent requirement
• Make reasonable adjustments
• Consider individual circumstances
• The comparator test
• Actual v perceived risk

10
Sticky Bits

• The relationship between educational institution
  and placement agency
• The relationship between educational institution
  and Disability Advisor
• Energy required to address discrimination
• A corporate climate of risk analysis
• Unrealistic expectations?
• Vocational outcomes?

11
Some Thoughts

• On the surface discrimination sometimes seem
  logical
• Promote an and/and approach
• Lateral thinking
• Consult with the employee
• Engage the community?

12
OHS Project

• WEB
• www.uws.edu.au/rdlo
• EMAIL
• l.a.burns_at_uws.edu.au

13
References

• WorkCover NSW, Annual Report 2002/03
• Summary of the OHS Act 2000
• OHS Legislation Amendment (Workplace Fatalities)
  Bill 2004
• Risk Assessment Code of Practice 2001
• WorkCover Paralympian Sponsorship Program 2003-04

14
References

• Human Rights and Equal Opportunity Commission,
  Annual Report 2002/03
• Zraika v Commissioner of Police, ADT NSW 7 April
  2004
• Woodhouse v Wood Cofill Funeral P/L HEROCA 20
  April 1998
• X v The Commonwealth 1999, HCA 63, 2 December
  1999

15
References

• Lavery v Commissioner of Fire Brigades ADT NSW 6
  May 2003
• HREOC Federal Discrimination Law 2004
• Purvis v New South Wales (Department of Education
  and Training) 2003