The recent changes to the Federal Disability Discrimina
tion Act should not be employers’ greatest concern.
The impact of the new discrimination law powers of the
Fair Work Ombudsman are of more significance, according
to Jane Seymour of Justitia Lawyers & Consultants.
Although the changes to the Disability Discrimination
Act, which came into effect on 5 August, will affect em
ployers, Seymour said the newly introduced right of em
ployees to make a discrimination complaint to the Fair Work
Ombudsman should cause employers more concern.
“The recent changes to the Federal disability legisla
tion do change the detail of the law, but not so significantly
that employers can either relax or, on the other hand, have
to significantly tighten their practice,” said Seymour.
She said what should be of more concern for em
ployers is potential prosecution by the Fair Work Om
budsman for taking discriminatory “adverse action” –
where employees can make a direct complaint to the
Fair Work Ombudsman in relation to disability (and other
types of ) discrimination.
“This adds a much greater risk for the employer who
puts a foot wrong in the area of disability,” said Seymour.
“Employers could face investigation, prosecution and
potentially a penalty of up to $33,000 for each breach.”
Since 1 July the Fair Work Ombudsman has been
able to start legal proceedings against an employer found
to be discriminating against an employee.
The recent changes to the Disability Discrimination
Act include the introduction of an explicit obligation to
provide “reasonable adjustments” and extending the
availability of the “inherent requirements” and “unjusti
fiable hardship” defences.
“One of the main changes is that the onus of proof has
shifted from the employee to the employer,” said Seymour.