Chapter 7 Section C: Employment and work
This section of the Manual deals with your rights in relation to work. You can find out more about:
- Discrimination in employment
- Employment and support services for people with a mental health condition
The following pages are about employment and rights. In this section of the Manual, you can find out more about:
- What is unlawful discrimination in employment
- What are 'inherent requirements' of a job
- What obligations employers have
- What questions can employers ask
- Complaining about discrimination at work
You can also find out more about your rights to be free from discrimination in relation to work on the Australian Human Rights Commission's website by clicking here, or at Fair Work Online by clicking here.
This material deals with your right not to be discriminated against because of disability. You also have the right not to be discriminated against (including) in employment on the basis of a number of other personal characteristics, including:
- your gender, i.e., whether you are a man or a woman;
- your marital status, i.e., whether or not you are married;
- your sexual preference;
- your racial background;
- your age;
- your responsibility for the care of others.
There are a number of things that might happen to you in relation to working or looking for work that may be unlawful discrimination. There are also things that might happen that may be discrimination, but not unlawful discrimination. For action to be unlawful discrimination, it needs to be more than simply unfair. It must relate somehow to the fact that you have a disability and that the person discriminating doesn't have a lawful excuse or 'defence'.
These actions are unlawful because there are laws that prohibit them. There are three main laws that protect workers in NSW against employment discrimination:
- The Disability Discrimination Act 1992 (Cth);
- The Anti-Discrimination Act 1997 (NSW);
- The Fair Work Act 2009 (Cth).
In general terms, the following are all discrimination:
- You are treated less favourably in any aspect of employment than another person who doesn't have the same disability would have been treated. For example, you are not allowed to go to a training program that other staff members who are doing similar work are invited to attend, and you are excluded because you've had a break from work because of your mental health condition.
- You need some sort of adjustment to work arrangements because of your disability and the employer fails to make that adjustment. For example, your employer refuses your request to start work slightly later because the medication you are on makes it difficult to wake up early in the morning.
- You must comply with an employment-related rule or requirement that you either can't or would find it difficult to comply with because of your disability. For example, you are required to work with a lot of background noise.
It becomes unlawful discrimination if the employer does not have a lawful defence.
There are three main ways that an employer can lawfully excuse its conduct:
- You are unable to perform the inherent requirements of the job, even after an adjustment is made.
- The adjustment you need is not a reasonable adjustment because to make the adjustment would impose an unjustifiable hardship on the employer.
- To not discriminate would cause an unjustifiable hardship to the employer.
Discrimination law dealing with employment doesn't just apply once you've got a job, it applies to the recruitment process including, for example, the interview and any pre-employment tests or questionnaires.
Discrimination law also applies to a wide range of aspects of employment including how much you are paid, whether you get access to training and promotional opportunities, whether you get access to benefits related to the work or workplace, and also to being sacked or made redundant.
Under the Fair Work Act 2009 (Cth), it is unlawful for an employer to take 'adverse action' against you because you have a disability.
Adverse action includes doing, threatening or organising any of the following:
- dismissing an employee;
- injuring an employee in their employment;
- altering an employee's position in a way that harms or disadvantages them;
- discriminating between one employee and other employees;
- discriminating against a potential employee in the terms and conditions employment that are offered.
If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from a range of places. Click here to find out more.
It is not unlawful discrimination if you don't get a job that you can't do. However, if you can do the 'inherent requirements' of the job (with or without a reasonable adjustment) then you have to be given the same consideration as any other candidate who can also perform the inherent requirements. If you are in a job and even if you are unwell for a period of time, so long as you can perform the inherent requirements of the job your must be given equal employment opportunities.
Inherent requirements are not necessarily the same thing as the essential or desirable criteria that are listed in a job description or duty statement, although those criteria generally should reflect the inherent requirements. Inherent requirements are likely to include:
- being able to perform the functions or tasks that are necessary to achieving the job outcomes;
- achieving an appropriate level of productivity;
- working to an appropriate quality standard;
- ability to work with those people whose jobs interact with the particular job;
- ability to work safely.
If your mental health condition or the treatment you receive for that condition affects your ability to do the inherent requirements of the job, it may be possible that an adjustment could be made to the way the work is done—such as the hours that you are required to be in the workplace, or the location or layout of the workstation—that mean you can fulfil the inherent requirements.
If you are in this situation, see the section on 'what obligations do employers have?' for information about what you can do.
The Australian Centre for Disability Law may be able to assist you concerning what are reasonable adjustments. To contact them click here.
Employers must treat their workers fairly and without discrimination, and provide them with a safe and healthy workplace. Employers must also make sure other workers don't harass or humiliate you because, for example, of your mental health condition.
Employers must make sure that their recruitment processes don't discriminate, that is, the recruitment process must be fair, and success in recruitment should be based on being the best person for the job. Excluding a person from a job because they disclose on their application, in a pre-employment questionnaire or in the interview that they have had depression, for example, would on the face of it be discriminatory.
If you apply for a job and require some change to the recruitment process to ensure that it is non-discriminatory, the employer must make that change so long as it is a 'reasonable adjustment', that is, an adjustment that doesn't cause unjustifiable hardship to the employer.
If you have a job and are having difficulties with performing the inherent requirements of that job because of your mental health condition, there might be a change that could be made that would mean you could perform the inherent requirements. If that is the case, and the change is a 'reasonable adjustment, then the employer is obliged to make the change.
You may have a disability discrimination complaint if, for example:
- the recruitment process is discriminatory;
- you require a change to the recruitment process and your request is turned down;
- you ask for a change to the way your job is done or to your work environment and the employer refuses your request;
- you are the subject of name-calling or the butt of jokes at work, or subjected to any other humiliation or bullying at work;
- your employer discovers you have a mental health condition and dismisses you.
If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from a number of places. Click here to find out more.
Employers can ask questions in the recruitment process that help them to decide who is the best applicant for the job. They are not, however, allowed to ask questions about disability or ask you, as a person with a mental health condition, questions that they don't ask everyone in order to exclude you from the job because of your disability. This includes asking questions about history of mental health condition.
Similarly, employers are not allowed to ask their employees such questions if they are doing so in order to treat an employee with a disability in a way that is unlawfully discriminatory . An employer can, however, ask an employee questions about their mental health condition in order to make changes to the workplace or work requirements that help the employee in their job.
If you think you have been asked discriminatory questions, either in recruitment or in employment, you should get legal advice. You can get free legal advice about discrimination from a number of places. Click here to find out more.
If you think you have been discriminated in the workplace because of a disability (which includes mental health conditions) you can complain to one of the following organisations:
- The Australian Human Rights Commission;
- The NSW Anti-Discrimination Board; or
- The Fair Work Commission
- The Fair Work Ombudsman
All four of these investigate and try to resolve complaints of employment discrimination. The Fair Work Commission is a Court, whereas the other three organisations attempt to resolve complaints by investigation and conciliation. The Australian Human Rights Commission and the NSW Anti-Discrimination Board each have an online complaints form.
The Fair Work Ombudsman can only investigate and take action about workplace discriminatory practices that happened (or continued) after 1 July 2009. Complaints of discriminatory dismissal to the Fair Work Ombudsman must be made within 21 days of your dismissal taking effect.
Complaints about employment discrimination (including discriminatory dismissal) under the Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1977 (NSW) should be made within a year of the discrimination happening.
The Australian Human Rights Commission can be contacted by:
Phone: 1300 656 419 (local call cost*)
(02) 9284 9600
Teletypewriter (TTY): 1800 620 241 (freecall*)
Fax: (02) 9284 9611
*Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.
Click here for the Commission’s Online complaint form.
For more about the Australian Human Rights Commission's processes and what happens with discrimination complaints made to the Commission, click here.
Click here for Fair Work Australia Online complaint form
The NSW Anti-Discrimination Board can be contacted by:
Postal address: PO Box A2122
SYDNEY SOUTH NSW 1235
Street address: Level 4, 175 Castlereagh Street
SYDNEY NSW 2000
Telephone: (02) 9268 5555
Freecall: 1800 670 812* (for rural and regional NSW only)
Teletypewriter (TTY): (02) 9268 5522
Fax: (02) 9268 5500
Postal address: PO Box 67
WOLLONGONG NSW 2520
Street address: 84 Crown Street
WOLLONGONG NSW 2500
Telephone: (02) 4267 6200
Freecall: 1800 670 812* (for rural and regional NSW only)
Teletypewriter (TTY): (02) 4267 6267
Fax: (02) 4267 24 9961
Postal address: PO Box 1077
NEWCASTLE NSW 2300
Street address: Suite 3, Level 3, 97 Scott Street
NEWCASTLE NSW 2300
Telephone: (02) 4903 5300
Freecall: 1800 670 812* (only within New South Wales)
Teletypewriter (TTY): (02) 4903 5389
Fax: (02) 4903 5389
* Remember, mobile phone calls to freecall numbers (numbers starting with 1800) and to local call numbers (numbers starting with 1300) are charged to the caller at the usual mobile rate.
Click here to go to the page where you can download the Board’s complaint form.
For more about the Anti-Discrimination Board's processes and what happens with discrimination complaints made to the Board, click here .
You can also click on the direct link to the Anti-discrimination Board here.
This section gives you information about:
- The roles of JobAccess and Job Services Australia
- Disability Employment Services
- The Supported Wage System
- The role of the Commonwealth Rehabilitation Service
The Commonwealth Department of Employment, Education and Workplace Relations (DEEWR) is responsible for a number of services designed to help people with disability to get a job or return to the workforce.
This first point of information and access to these services is the JobAccess website.
You can contact a JobAccess Adviser on 1800 464 800*.
To access information for job seekers with disability', click here.
Most of the information on the employment services listed in this section is available on the JobAccess website.
* Remember, mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.
Job Services Australia is a national network of organisations that help job seekers to find and keep employment.
Job Services Australia has replaced employment services such as the Job Network. Job Services Australia provides a single entry point for job seekers to access employment help and training opportunities.
Click here to find out about specific services from Job Services Australia for people with disability including mental health conditions.
Specific assistance may be available for job seekers with disability, including those who have mental health conditions. For more information about this, follow this link.
Disability Employment Services assist job seekers with disability, injury or health condition to prepare for, find and keep a job. These services are funded by the Commonwealth and delivered by non-government for-profit and not-for-profit organisations. The program has two parts:
Disability Management Service: is for job seekers with disability, injury or health condition who need assistance to find a job and occasional support to keep a job; and
Employment Support Service: provides assistance to people with permanent disability who need regular ongoing support to keep a job.
For more information about the Disability Employment Services, click here to go to the website.
The Commonwealth Rehabilitation Service (CRS) Australia is the Australian Government provider of vocational rehabilitation services. It assists people with disability, injury or health conditions to get and keep a job. Vocational rehabilitation combines rehabilitation with employment to help job seekers get and/or keep a job.
CRS Australia may be able to help if you are a job seeker and you:
- have a disability, injury or health condition that affects your ability to get and/or keep a job;
- are aged between 14 and 65 years;
- are an Australian citizen or non-time-limited resident; and
- have a health condition that is sufficiently medically managed to allow you to participate in a vocational rehabilitation program.
Usually people are referred to the CRS after a job capacity assessment from Centrelink.
CRS Australia's has staff with expertise in helping people manage their mental health condition to get and/or keep a job (this includes psychologists, social workers and rehabilitation counsellors). About a quarter of the people who CRS works with have a mental health condition, and often these conditions are accompanied by a physical injury or disability.
CRS can provide both early intervention and complex injury management services, including assessments.
- determines what assistance you may need, and
- identifies suitable changes an organisation can make to prevent/manage psychological injuries.
If you are unable to get and/or keep a job at full pay rates because of the effect of your disability on your productivity, you may be able to be paid on the basis of your assessed productivity. In Australia, there is a supported wage system that allows this to occur and that provides a framework for employers who want to apply the supported wage system in their workplace.
If a supported wage approach is going to be taken, there will be an independent assessor involved to work out your productivity and then your wage level will be based on that. There is no cost to your employer or to you for this assessment.
For more information, see the information on the Supported Wage System on the Job Access website.
- The legal and other information contained in this Section is up to date to 30 January 2015.
- This Manual only refers to the law and practices applying to the Australian state of New South Wales (NSW) - unless it states otherwise.
- MHCC does not guarantee the accuracy nor is responsible for the content or the currency of the content of external documents and websites linked to this Manual.