Remove barriers to making discrimination claims: Inquiry

Wednesday, 04 May 2016

The Australian Human Rights Commission has suggested it should be easier for employees to pursue workplace discrimination claims in court, in a major report on age and disability discrimination.

The 528-page report is the result of a year-long AHRC inquiry into work-related age and disability discrimination, and makes more than 50 recommendations.

The Commission notes that at the time of its April 2015 survey some 27 per cent of people over the age of 50 had recently experienced workplace discrimination; and in the past 12 months, nearly one in 12 Australians with disability (8.6%) reported experiencing discrimination or unfair treatment.

Pursuing discrimination claims should be less of a burden
The AHRC directs nine recommendations to the Federal Government, including that it consider changing the definition of disability under the Commonwealth Disability Discrimination Act 1992 to align more closely with the United Nations Convention on the Rights of Persons with Disabilities’ definition.

The latter definition doesn’t focus on individuals’ limitations but rather on “barriers that society constructs for people with disability”, the Commission says.

The Commission also recommends the Government consider the benefits of introducing into law a positive duty to prevent discrimination.

The Victorian Equal Opportunity Commission told the inquiry: “A positive duty is about being proactive. It means eliminating causes of discrimination that may be part of your systems of work, not just responding to complaints that arise.”

A further recommendation is for the Government to consider removing from discrimination laws the “complicated and contentious” comparator test to establish direct discrimination, which “requires a comparison to be made between the way in which a person with a protected attribute (such as disability or age) is treated and the way in which a person without that attribute would have been treated in circumstances that are materially the same”.

Instead, it could use the ACT Discrimination Act’s detriment test, which more simply assesses whether a person has discriminated against another person by treating or proposing to treat the other person unfavourably because of a protected attribute.

The AHRC recommends other ways in which the Government could remove barriers to employees pursuing discrimination claims in court, including:

allowing representative organisations with a sufficient interest to commence federal court proceedings on behalf of workers, but only by leave of the court;
requiring parties to bear their own costs of federal court proceedings, with courts retaining the discretion to make costs orders when considering financial circumstances and other matters;
amending federal discrimination laws to apply to discrimination based on a combination of protected attributes, rather than each separate attribute; and
consulting with workers, employers and peak bodies on the value of developing employment disability standards.
The Commission also found that while employees have a right to request flexible working arrangements under s65 of the Fair Work Act, their inability to appeal an employer’s decision can prevent older workers and workers with disability from receiving such arrangements.

“Individuals and organisations were concerned that this provision ‘lacks teeth’ because employees have no recourse under the Act where they believe an employer’s refusal was not on ‘reasonable business grounds’,” it says, in recommending a review of the provision.

The AHRC also recommends a review of the fairness of the 21-day time limit for making general protections or unfair dismissal claims.

Employer action steps
“Employers, businesses and the organisations that represent them, have a critical role to play in recruiting, retaining and training older people and people with disability,” the Commission says, outlining numerous steps employers can take to prevent workplace discrimination.

Employers should provide managers and supervisors with support to create and manage diverse teams and flexible workplaces, by helping them with job design, training them in how to manage flexible work arrangements, providing them with information on mental health, and training them in the nature and impact of discrimination, it says.

Organisations should also have a “coherent and systemic organisational business strategy” that:

includes voluntary targets for recruiting and retaining older workers and workers with disability, as well as practical strategies to achieve those targets;
regularly tracks and reports on progress and accountability;
encourages employer-to-employer mentoring and partnerships with specialist organisations;
provides employees with guidance on how to support disability disclosure in a non-discriminatory and non-threatening manner;
makes it easy to adjust workplaces when necessary; and
provides internships/traineeships/apprenticeships and mentoring programs.
The AHRC also recommends employers review their recruitment and retention processes to ensure practices, language and accessibility aren’t discriminatory, and outline their diversity expectations to recruitment agencies.

They should also facilitate older workers’ transition into other industries or jobs by providing timely and relevant skills training and identifying transferable skills, and ensure flexible work practices are “mainstream” by making all jobs and work environments flexible, rather than only on request, it says.

Willing to Work, AHRC, May 2016

Source: HR Daily

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