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Legislation and concepts

The legislation

Selections in the Australian Public Service are affected by a number of pieces of legislation and legal principles.

Of particular relevance to the employment of people with disability are:

the Public Service Act 1999, Public Service Regulations 1999, and Public Service Commissioner’s Directions, especially those provisions dealing with diversity and merit
the Disability Discrimination Act 1992 (DD Act)
the Human Rights and Equal Opportunity Commission Act 1986.

In broad terms, this legislation imposes a positive onus on public servants to make decisions based on merit, to support diversity within the workplace, and to avoid discrimination. The DD Act in particular operates to make it unlawful to discriminate against a person in employment on the basis of their disability.

Overhead Slide 1

The law requires APS employers to:

make decisions based on merit
create workplaces that recognise the diversity of the Australian community
not discriminate against people with disability in employment.

Reasonable adjustment

Reasonable adjustment applies to the employment of people with disability. In a selection context, its purpose is to allow consideration of adjustments to the process and, within reason, to the duties, which might be made to facilitate the employment of such staff. Consideration needs to be given to the specific disability of the applicant, rather than making assumptions about people with that category of disability. Merit has to be observed, but the selection panel and the delegate are able to consider reasonable adjustment factors in the assessment process.

An applicant with a disability must be able to perform the duties which are the primary purpose of the employment opportunity. Consideration of possible modifications to duties, however, must be made unless it involves ‘unjustifiable hardship’.

The meanings of ‘reasonable adjustment’ and ‘unjustifiable hardship’ are discussed in more detail in Part 1 of this toolkit at What are we talking about? Some definitions…..

Examples of 'reasonable adjustment' include:

tailoring recruitment and selection procedures to allow fair access for people with disability by, for example, providing recruitment material in alternate formats such as electronically or in large font hard copy
modifications to work premises or equipment, such as providing voice-activated software
changes to the design of duties, work schedules, e.g. is it possible for other employees to swap some of the duties?

Additional examples are also set out in Part 1 of this toolkit at What are we talking about? Some definitions….

Overhead Slide 2

Fair treatment does not mean treating everyone the same way.

People with disability are entitled to ‘reasonable adjustment’ in their employment, including selection processes and development opportunities.

Discrimination in selection processes

Direct discrimination occurs whenever an individual is unfairly disadvantaged by being treated differently from others because of, in this case, his or her disability. For example, refusing to promote an employee solely because he or she has a disability can amount to discrimination if they are otherwise able to perform the inherent requirements of the position.

Indirect discrimination occurs when a system or requirement that looks objectively fair operates in practice to disadvantage people with disability unfairly, and is not reasonable. For example:

the failure to provide proper access for people with disability to an office building may prevent people with mobility or sensory impairments from getting to an interview in the first place
a requirement that all applicants prepare a handwritten report as part of their interview may disadvantage people with, for instance, motor control disabilities.

In each of these cases, an objective requirement which did not, on its face, mention disability in any way can create a disproportionate disadvantage for applicants with disability that is not related to their capacity to perform the inherent requirements of the position. Circumstances like this raise the potential for allegations of indirect discrimination.

Discrimination, particularly indirect discrimination, is a complex issue for people conducting selection exercises, and care will often need to be exercised to ensure that processes that might seem fair do not, in practice, operate to discriminate unfairly against applicants with disability.

It is important to remember that treating people the same is not always the same as treating them fairly, whether or not they have a disability. It would not, for example, be fair to expect a person with a speech impairment to give an oral presentation during a selection exercise even though that is what all the other candidates were asked to do.

Each applicant is an individual and, within reason, people conducting selection exercises need to consider on a case-by-case basis what they need to do to allow each individual to present their claims effectively.

Further information on discrimination is available from the Human Rights and Equal Opportunity Commission.⁵²

The APS Values stipulate that:

the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves⁵³

Overhead Slide 3

Are our processes fair for everyone?

Have I considered ways to ensure that people with disability can compete fairly for selection? For example:

Have I advertised the vacancy widely?
Have I made sure that the selection documentation is available in different formats?
Have I considered accessibility issues for the venue?

52 http://www.humanrights.gov.au/disability_rights/faq/Employment/employment_faq_1.html#discrimination

53 PS Act, s.10(1)(c)

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