Federal Discrimination Law Update

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Federal Discrimination Law Update
Industrial Relations Society ACT

• Jennifer Fisher
• 29 April 2009

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Proposed and possible legislative changes

• Disability Discrimination and Other Human Rights
  Legislation Amendment Bill 2008
• Standing Committee on Legal and Constitutional
  Affairs report on the Sex Discrimination Act 1984
  (Cth)

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Disability Discrimination and Other Human Rights
Legislation Amendment Bill 2008

• Proposes amendments to
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)

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Disability Discrimination Act 1992 (Cth)

• Proposed changes reflect recommendations of 2004
  Productivity Commission report
• disability definition expanded to include to
  genetic disposition to a disability
• Direct discrimination positive duty to make
  reasonable adjustments

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Disability Discrimination Act 1992 (Cth) ctd

• Indirect discrimination whether requirement or
  condition disadvantages
• Unjustifiable hardship general defence to
  positive duty to make reasonable adjustments

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Age Discrimination Act 2004 (Cth)

• Removes dominant reason test
• New test needs only to be only one of the
  reasons, not the dominant reason

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Standing Committee on Legal and Constitutional
Affairs report on the Sex Discrimination Act 1984
(Cth)

• The Sex Discrimination Act matters. It matters as
  a tool for driving systemic and cultural change
  which is needed if we are to live in a country
  where men and women enjoy true gender equality in
  their daily lives. The Act has been in operation
  for nearly 25 years. Like most law, it is time to
  renew it to ensure that it continues to be an
  effective platform for progressing gender
  equality
• Sex Discrimination Commissioner Elizabeth
  Broderick
• Committee Hansard, 9 September 2008, p. 4.

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Key recommendations

• Change definition of marital status to include
  same sex couples
• Direct discrimination change comparator to
  unfavourable treatment similar to DDA definition
• Indirect discrimination replace reasonable
  with legitimate and proportionate

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Key recommendations (ctd)

• Coverage of the Act be extended to volunteers and
  independent contractors partnership, regardless
  of size
• Family responsibilities all areas of employment
• Breastfeeding included as a ground on which
  discrimination can occur
• Positive duty on employers to reasonably
  accommodate requests by employee for flexible
  working arrangements

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Key recommendations (ctd)

• Employees to be protected to from sexual
  harassment from customers, clients and other
  persons they come into contact with in the course
  of their employment
• Change definition of sexual harassment to the
  possibility that the other person would have been
  humiliated, offended or intimidated.
• Considering shifting the onus of proof to align
  with the UK system

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Key recommendations (ctd)

• Ability to join claims under federal
  discrimination law if appropriate
• Considering giving HREOC prosecution powers to
  commence legal action for breach of the Act (even
  where no individual complaint has been made)
• Changing application time limit from 28 days
  after termination of complaint to 60 days

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Conclusion

• Interesting and complicated area of the law
• Watch this space some changes in motion others
  looming large
• Focus has been on Fair Work Act 2008 (Cth) but
  dont forget to monitor the progress of changes
  to federal discrimination law as well

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Questions?

• Thank you

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