This section of the Manual deals with your rights in relation to work. You can find out more about:
The following pages are about employment and rights. In this section of the Manual, you can find out more about:
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 chapter 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 because of a number of other personal characteristics, including your:
There are several things that might happen when you are 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 to the fact that you have a disability and that the person discriminating doesn’t have a lawful excuse or ‘defence’.
There are three main laws that protect workers in NSW against employment discrimination:
In general terms, all of the following are discrimination:
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:
Discrimination law dealing with employment doesn’t just apply once you’ve got a job, it also 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 promotion opportunities, whether you get access to benefits related to the work or workplace, and also to being fired 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:
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. For example, an employer can decide not to hire you as a delivery driver if you have a condition that stops you from being able to drive. 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 are unwell for a period of time, so long as you can perform the inherent requirements of the job you 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. However, those criteria generally should include the inherent requirements. Inherent requirements are likely to include:
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.
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. 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, could be discrimination.
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:
If you think you have been discriminated against, you should get legal advice. You can get free legal advice about discrimination from several places. Click here to find out more.
You do not have to tell an employer that you have a mental health condition if it does not impact your ability to do the job or to work safely. Employers can ask questions in the recruitment process to help them to decide who is the best applicant for the job. They are not 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 the history of your 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. click here to find out more.
If you think you have been discriminated in the workplace because of a disability (which includes a mental health condition), you should raise this with your employer. Your employer may have a complaints procedure, or someone in the people management team who can help you. You should provide details of when you experienced discrimination. It can help to put these concerns in writing.
If approaching your workplace does not help resolve the issue, you can complain to one of the following organisations:
These four organisations 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 Anti-Discrimination Board of NSW each have an online complaints form.
The Fair Work Ombudsman can take action against most employers for failing to comply with the Fair Work Act 2009 (Cth). Not all employers are covered by this Act, for example, the NSW Government is not covered but if you are a NSW Government employee, you are protected against discrimination in the workplace by the Anti-Discrimination Act 1977 (NSW).
Complaints of discriminatory dismissal to the Fair Work Ombudsman must be made within twenty-one (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 one (1) year of the unlawful discrimination taking place.
Complaints to the ADB should be made within twelve (12) months of the actions that you believe were unlawful discrimination. Complaints to the AHRC should be made six (6) months of the actions that you believe were unlawful discrimination. You should ask the ADB or AHRC for more information about the time limit that applies for your particular complaint.
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
*Mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.
The Anti-Discrimination Board of NSW can be contacted by:
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)
Fax: (02) 4267 24 9961
Street address: Level 7, 10 Valentine Avenue
PARRAMATTA NSW 2150
Telephone: (02) 4903 5300
Freecall: 1800 670 812* (only within New South Wales)
Fax: (02) 9268 5500
*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.
For more about Anti-Discrimination NSW’s processes and what happens with discrimination complaints made to the Anti-discrimination Board, click here .
This section gives you information about:
The Commonwealth Department of Employment, Skills, Small and Family Business 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. JobAccess is the national hub for workplace and employment information for people with disability, employers and service providers.
You can contact a JobAccess Adviser on 1800 464 800*.
* 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 provides a single-entry point for job seekers to access employment help and training opportunities.
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.
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.
There are some conditions to accessing the Supported Wage System (for example, you must be at least 15 years old). For more information, see the Job Access webpage on the Supported Wage System.
You may have to stop working because you become injured or sick, including if you become unwell with a mental health condition. In these circumstances, if your job has superannuation, the superannuation policy may include insurance that can help you and you may be able to make a claim for a payment. People do not always know what insurances are included in their superannuation, so it is a good idea to check.
Here is some more information about this program –
You can also seek legal advice if you do not know how to check or make this claim.
Updated May 1, 2020