Carol Louw of CCH reports on the case of the ATO and a worker with hypertension; young workers' rights; paid maternity leave; and the good news for same-sex couples.
ATO discriminates against obese man
The ATO was found to have discriminated against a worker on the basis of his disability when it withdrew a job offer to him after discovering he suffered from hypertension.
The ATO offered the worker, a morbidly obese man, a position as a GST compliance officer, subject to a condition that, should he be found unfit for work, the offer could be withdrawn. The worker was subjected to a medical when he commenced employment and again three weeks later. It was revealed that he was suffering from hypertension.
On the basis of these findings, the ATO withdrew the offer of employment it had made. In particular, it took the view that the worker's role required extensive driving and that the worker could not fulfil this inherent job requirement without placing the ATO under unjustifiable hardship.
On the basis of the ATO's action, the worker then brought a claim under s15 of the Disability Discrimination Act, which was upheld by the Federal Court of Australia.
In finding in the worker's favour, the court noted that, while the worker's blood pressure readings were very high, he also suffered from 'white coat syndrome'. That is, he suffered anxiety around medical practitioners, which inflated his blood pressure well beyond what it would normally be.
The court also accepted that hypertension was a disability for the purposes of s 5(1) of the Act and that the ATO had imputed this disability to the worker.
With this in mind, the court noted that it had to determine whether the worker had been discriminated against when compared to a worker who was not suffering from hypertension.
The court ruled that someone in that position would not have had his contract of employment withdrawn.
The court also observed that the ATO had not proved the worker was unable to carry out the inherent requirements of the position. It had also not proved that the worker could not be accommodated even if he were unable to drive.
The court awarded damages of $121,762 to the worker. This included damages for loss of income, mental anguish and interest, as well as the cost of reimbursing Centrelink for money he received after his dismissal but would have to pay back.
Bill proposes increased protection for young workers in the ACT
The Children and Young People Bill 2008 was introduced in the ACT Legislative Assembly in March. It will replace the Children and Young People Act 1999, and proposes significant reform to the law relating to children and young people, particularly in the areas of care and protection, youth justice, the regulation of childcare services and employment law for children and young people.
This follows a comprehensive review of the Act over the past four years, involving consultation with various agencies.
Key employment law changes include:
improved protection for children and young people under school leaving age undertaking work experience programs, through the introduction of work experience standards
enhanced safeguards for all children and young people who are employed in the ACT through the introduction of employment standards
greater certainty about employment requiring the consent of the chief executive, through enabling the minister to declare industries, activities, and occupations that are high risk
improved opportunities for children and young people under school leaving age to engage in light work, deemed by employers, that is not contrary to their best interests.
For further information access the Children and Young People Bill 2008 and the explanatory statement for the Bill on the ACT Legislation Register website.
Same-sex laws to be addressed
On 30 April 2008 the federal government announced that discrimination against same-sex couples and their children would be removed from federal legislation.
The reform follows the Human rights and equal opportunity commission's 2007 same-sex: same entitlements report, which recommended the amendment of 58 discriminatory laws in the areas of financial and workplace benefits.
More than 40 additional laws which discriminate in other areas will also be amended.
Legislation will be introduced in the winter session of parliament. If passed, it will be effective by mid-2009.
The government has announced that discrimination will be removed in areas such as taxation, superannuation, Medicare and pharmaceutical benefits, aged care, veterans' entitlements, workers' compensation, and employment entitlements.
Ways to improve maternity leave under review
The Productivity Commission is to examine ways the federal government can provide improved support to parents with newborn children.
The federal government said that any policy reforms would aim at ensuring strong and sustainable economic growth, take into account an ageing population and the importance of early childhood development, and to support families in balancing work and family responsibilities.
The commission will look at the economic and social costs and benefits of paid maternity, paternity and parental leave.
In undertaking the inquiry the commission is to:
identify the economic, productivity, and social costs and benefits of providing paid maternity, paternity and parental leave
explore the extent of current employer provision of paid maternity, paternity and parental leave in Australia
identify paid maternity, paternity and parental leave models that could be used in the Australian context
It will then assess those models for their potential impact on:
the financial and regulatory cost and benefits on small- and medium-sized business
the employment of women, women's workforce participation and earnings, and the workforce participation of both parents more generally
work / family preferences of both parents in the first two years after the child's birth
the post-birth health of the mother
the development of young children, including the particular development needs of newborns in their first two years
relieving the financial pressures on families
The commission will also assess other factors, including the cost- effectiveness of the models, their interaction with social security and family assistance systems, and the impacts and applicability of the models across the full range of employment. It will be asked to report by February 2009.
Public hearings will be held and submissions from the public will also be sought, with a report produced for the government to release publicly.
For further information, or to register an interest in the inquiry, visit the Productivity Commission website or phone (02) 6240 3239.
