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Employment laws
The Commonwealth Disability Discrimination Act
Unlawful discrimination
Harassment
Requirements of the job
What obligations do employers have?
What questions can employers ask?
Making a complaint
Job Interviews
Trade unions
Awards and Enterprise Agreements
Employment and training services for people with mental illness/disability
Job Network
For employers
For  job seekers
Disability Employment Network
More information for employers
More information for job seekers and workers
Vocational Rehabilitation Services
For employers
For  job seekers and workers
Personal Support Program (Pre-vocational)
Supported Wages System
Disability Business Services
The Commonwealth Rehabilitation Service (CRS)
Who can CRS Australia help?
What happens at CRS Australia?
'Welfare to Work' - Starting July 2006

In NSW, the law protects people with disabilities from being discriminated against in employment. It is clear under both Federal and State laws that people with a disability have the right to equal employment opportunity. For this reason, various Federal and State government agencies have also made efforts to assist people with disabilities to train for and to find employment.

A website has been developed called “Choosing Your Path: Disclosure – It’s a Personal Decision”. The MHCC highly recommends this site as it clearly outlines all the options relating to disclose a mental illness (or any other disability) when seeking employment or beginning studies. As it notes, job-seekers with a mental illness are protected by legislation; furthermore, the site encourages people with a disability to develop a ‘disclosure personal plan’. This is a document which is written by the person with a disability and should incorporate personal decisions about when (or if) a person’s disability should be disclosed. People can update this plan to incorporate new changes throughout their study and working career. For web site details, go to Chapter 18.

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Employment laws

In NSW, both the NSW Anti-Discrimination Act 1977 (administered by the Anti-Discrimination Board NSW) and the Commonwealth Disability Discrimination Act 1992 (administered by the Human Rights and Equal Opportunity Commission) aim to provide protection for people with a disability. Both Acts make discrimination based on disability, including psychiatric disability, unlawful. Details of the amended NSW Act can be obtained from the NSW Anti-Discrimination Board (contact details in Chapter 18).

The Commonwealth Disability Discrimination Act

Under this Act, a Disability Discrimination Commissioner is appointed to oversee the operation of the Act and to protect the rights of people with disabilities. The definition of disability within the Act is intended to cover as many people as possible and includes people with:

• a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement, or that results in disturbed behaviour
• a disability that presently exists, previously existed but no longer exists, or may exist in the future, or is imputed to the person.

Discrimination for the purposes of the Disability Discrimination Act means being treated less favourably and unfairly because of:

• a disability;
• disability in the past;
• possible disability in the future;
• someone thinks a person has a disability ('imputed disability'); and/or
• someone is an associate of a person with a disability.

The Act makes it unlawful to discriminate against someone if they have a disability in the following areas of life:

• Employment. eg, when someone is trying to get a job, equal pay or promotion;
• Education. eg, when enrolling in a school, TAFE, university or other colleges;
• Access to premises used by the public. eg, using libraries, places of worship, government offices, hospitals, restaurants, shops, or other premises used by the public;
• Provision of goods, services and facilities. eg, goods or services from shops, pubs and places of entertainment, cafés, video shops, banks, lawyers, government departments, doctors, hospitals and so on;
• Accommodation. eg, when renting or trying to rent a room in a boarding house, a flat, unit or house
• Buying land. eg, a house, a place for a group of people, or drop-in centre;
• Activities of clubs and associations. eg. wanting to enter or join a registered club, (eg. sports club, RSL or fitness centre), or when a person is already a member;
• Sport. eg, when wanting to play, or playing a sport; and/or
• Administration of Commonwealth Government laws and programs. eg, when seeking information on government entitlements, trying to access government programs, wanting to use voting facilities.

Both direct discrimination and indirect discrimination are unlawful under the Act. Direct discrimination occurs when a person is treated less favourably or unfairly because of a disability. Indirect discrimination happens where a requirement or condition is imposed (whether it is imposed on everyone or not) that has a more severe impact on people with a disability, and which is not reasonable.

Unlawful discrimination

In the area of employment, the Disability Discrimination Actmakes discrimination on the grounds of disability unlawful in the following areas:

• In arrangements made for offering a job (eg advertising a job, in the job interview or other selection process);
• In deciding who should be offered employment;
• In the terms and conditions of employment;
• In promotion, transfer, training or other benefits associated with employment; and/or
• In dismissal or any other disadvantages.

The Act includes people working under contract, members of partnerships of three or more people, and it also covers discrimination by:

• Bodies with control over professional, trade or occupational qualifications;
• Federally registered trade unions; and
• Employment agencies.

Harassment

The Disability Discrimination Act covers harassment of a person on the grounds of disability in any of the areas listed above. Harassment takes place when someone is teased, tormented, bullied, intimidated or persistently bothered. Sexual harassment is sexual conduct that is unwelcome and uninvited. It is unlawful under both the Commonwealth Sex Discrimination Act and the NSW Anti-Discrimination Act.

Requirements of the job

The Disability Discrimination Act does not say that people must be given jobs they cannot do. They must be able, one way or another, to carry out the basic tasks that make up the job. It is stated in the terms of the Act that people must be able to perform the ‘inherent requirements’ of the job.

Some features of a particular job may not be ‘inherent requirements’, since there may be different ways of getting the job done, or some adjustments or changes that may be made in the job design or the equipment used to carry out the job.

What obligations do employers have?

Employers may need to review job requirements that restrict equal opportunity for people with a disability. This may involve providing training or other assistance. Under the Disability Discrimination Act, employers may be liable for discrimination that they have not taken reasonable steps to prevent. Employers should have effective policies and practices to remove barriers to equal employment opportunities for people with a disability.

What questions can employers ask?

Employers may be acting unlawfully if they seek information from a person with a mental illness or some form of disability by asking questions that they would not ask a person without a disability.

Employers are certainly acting unlawfully if they request information for the purposes of discrimination. For example, an employer can ask questions related to a person’s psychiatric disability in order to establish what adjustments or supports are required to enable the person to perform the inherent requirements of the job. However, it would be unlawful if an employer asked questions relating to people with a disability for the purpose of excluding them from a job, where they could actually do the job if some simple adjustments were made to the workplace.

Job Interviews

Interview questions should generally relate to the job. Questions about ability should have relevance to the position. It is preferable for employers to explain to the applicant the nature of the work carried out or provide a job description to the applicant and ask if there is anything that would prevent the applicant from carrying out that job or undertaking tasks associated with the job.

If an employer asks someone if they have a disability, or if they have to fill in a form with a disability question on it, how they respond may depend on how the question is asked. If they believe that their mental illness is managed so that it will not affect their ability to do the job then they may consider that they do not have a disability in respect to that position.

An employer may ask if an employee has a disability. The employee may or may not disclose the nature of the disability. However, if the employer makes the decision not to employ the person based on disclosed information they may open themselves up to a claim of discrimination on the grounds of a disability.

Making a complaint

If you suffer a mental illness, you live in NSW, and you think you have been unsuccessful in applying for a job because you have disclosed your disability it is suggested that you contact  either The NSW Anti-Discrimination Board (contact details are in Chapter 17), or the Human Rights and Equal Opportunity Commission, which can assess the case using state or federal law (the Anti-Discrimination Act 1977 or the Commonwealth Disability Discrimination Act 1992), respectively. Staff at the HREOC can assist people to make a complaint or they can contact the Disability Discrimination Legal Centre for assistance and advice ( for contact details see Chapter 18).

Trade unions

Unions are legally registered bodies who work in the same industry or occupation and have joined together to protect and improve their interests. In NSW, unions cover most occupations. All workers have the right to belong to and take part in union activities.

Members elect their own local representatives. It is generally these representatives who should be contacted if a problem arises. Local representatives and officials can approach an employer on behalf of an employee and will argue the employee’s case or explain the problem.

Unions can provide their members with information and assistance on the rights and obligations of employees and employers such as:

• Rates and payment of wages;:
• Hours of work and free time;
• Entitlements to annual, sick, long-service or parental leave;
• Discrimination and equal employment opportunity;
• Occupational health and safety;
• Workers’ compensation;
• Redundancy and retrenchment;
• Wrongful or unfair dismissal;
• Resignation;
• Superannuation and retirement; and
• Dispute settlement.

Awards and Enterprise Agreements

The minimum employment rights and obligations for particular jobs or industries are influenced by State and Federal laws, registered awards and agreements and common law obligations. These can sometimes be difficult to understand and unions can give advice and assistance. Advice can also be obtained from the Commonwealth Department of Industrial Relations or the NSW Office of Industrial Relations (contact details in Chapter 18).

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Employment and training services for people with mental illness/disability

The Department of Employment and Workplace Relations (DEWR) is responsible for a number of services designed to assist people with a disability enter or return to the workforce. These first point of information and access to these services is the JobAccess website: http://www.jobaccess.gov.au/JOAC/Home/
The majority of information on the employment services listed below is available on the JobAccess website.

Job Network

Disability Employment Network

Vocational Rehabilitation Services

Vocational Rehabilitation Services provide support to people who have a disability, injury or health condition and need assistance to get or keep a job.

As well as providing assistance to job seekers and workers with disability and injuries, Vocational Rehabilitation Services can also assist employers to employ a person whose skills and abilities match their job requirements and support the employer and the successful applicant in the new role.

The Australian Government Department of Employment and Workplace Relations funds CRS Australia to provide Vocational Rehabilitation Services. For more information on this service, see the section in this chapter entitled 'CRS Australia' or call the numbers listed below.

For employers

If you are an employer, you can find out what assistance is available to you, by:

• Visiting Vocational Rehabilitation Services for employers—getting advice and support
• Phoning 13 17 15.

For job seekers and workers

If you are a job seeker or worker with disability, you can find more information, including participant eligibility requirements and the locations of local Vocational Rehabilitation Services, by:

• Visiting Vocational Rehabilitation Services for job seekers—getting advice and support
• Phoning 13 62 68.

Personal Support Program (Pre-vocational)

For more information on the Personal Support Program, visit: http://www.jobaccess.gov.au/JOAC/Services/Related+services/personalsupportprogramme.

Supported Wages System

Most Australians who have a disability and participate in the open workforce do so at full award rates of pay. However, there are some people who are unable to obtain and/or maintain employment at full award rates due to the effects of a disability on their workplace productivity.
 
With the availability of the Supported Wage System (SWS), people in such circumstances can now choose to access a reliable process of productivity-based wage assessment and related workplace-specific assistance in order to access appropriate jobs in the open workforce.
 
An eligible person who elects to participate in the SWS may be independently assessed as having a productivity level of say 70%, compared to the productivity of co-workers performing the same (or similar) duties receiving a full award wage. The SWS-eligible worker and the employer can agree to an ongoing employment relationship, subject to annual review,  where the rate of pay will be 70% of the full award rate.

The system operates within the normal State and Federal industrial relations regulatory frameworks. SWS participants have the same conditions of employment as their co-workers who receive a full award wage.

The assessed percentage of productivity applies to the wage rate only. All other employment conditions such as sick leave and superannuation are at the award level.

To contact someone about the Supported Wages System visit: http://www.jobaccess.gov.au/JOAC/Employers/Employer+incentives/SupportedWageSystem.htm

The Commonwealth Rehabilitation Service (CRS)

CRS Australia is the Australian Government provider of vocational rehabilitation services and has over 65 years of experience assisting Australians who have a disability, injury or health condition to get and keep a job.

Vocational rehabilitation is a comprehensive program, combining rehabilitation with employment assistance to help job seekers get and/or keep a job.

CRS Australia also provides nationwide coordination of injury prevention services in the following:

• manual task assessment and training;
• office ergonomics training;
• computer workstation set up training;
• ergonomic workstation assessments;
• home based work assessments;
• pre-employment screening assessments; and
• Employment Assistance Program (EAP).

Who can CRS Australia help?

CRS Australia may be able to help if a job seeker:

• has a disability, injury or health condition that impacts on their ability to get and/or keep a job;
• is aged between 14 and 65 years;
• is an Australian citizen or non-time limited resident; and
• has a health condition that is sufficiently medically managed to allow them to participate in a vocational rehabilitation program.

CRS Australia can help job seekers with a mental health condition if their condition is sufficiently stable to enable the job seeker to participate in a vocational rehabilitation program.

All job seekers requiring an employment assistance program are required to have a Job Capacity Assessment (JCA). This assessment will determine the most appropriate service to suit the job seeker’s needs. A JCA can be arranged through local Centrelink offices. 

What happens at CRS Australia?

Once a JCA assessor has referred a job seeker to CRS Australia, a rehabilitation consultant works with the job seeker to develop a plan based on individual needs and goals. This plan will set clear goals and the means of achieving them.

A vocational rehabilitation program may include:

• assessment of the impact of a job seeker’s disability, injury or health condition on their ability to participate in employment;
• tailoring an individual plan to manage their disability and achieve employment; 
• vocational counselling and planning to identify a safe, suitable and sustainable job goal;
• counselling on disability, injury or health condition issues;
• short-term employment skills training;
• functional assessment and job-specific physical conditioning assistance;
• workplace assessments or modifications;
• work training;
• job seeking; and
• job placement assistance and post placement support.

'Welfare to Work' - Starting July 2006

It should be noted that at the time of editing this manual (July 2006) a new Government initiative entitled 'Welfare to Work' was introduced via Centrelink. Under this package some changes have been made that may affect people with disabilities and their carers. These changes are as follows:

• people with disabilities - From 1 July 2006, people who are assessed as capable of working 15–29 hours per week will have to look for work to their level of capacity. Depending on their individual needs, people will have access to specialist disability services, Vocational Rehabilitation, Australian Apprenticeships, job search and placement help, and ongoing workplace support. No-one will be expected to participate or work beyond their capacity. The changes will not affect people who were on Disability Support Pension before 10 May 2005.
• parents/principal carers - From 1 July 2006, people granted income support who are principal carers of a child or children will generally have to seek part-time work if their youngest child is aged between 6-15 years. These customers will have to register with an employment service provider and look for paid work of at least 15 hours per week. Job Network's new Employment Preparation service will help parents prepare for work and they will have access to other support services such as subsidised child care. Some exemptions will apply to parents with special family circumstances. People who are already on Parenting Payment will have to seek part-time work from 1 July 2007 or when their youngest child turns seven, whichever is later.
  

For more information on these changes visit Centrelink online at: http://www.centrelink.gov.au/internet/internet.nsf/services/welfare_work.htm#when