The Law Handbook 2024

Chapter 8.1: Understanding disability and the law 783 and private educational institutions, primary and secondary schools, and tertiary institutions (TAFE, private colleges and universities). Educators must offer a person with disability the same educational opportunities as everyone else, including with regards to enrolment, if the entry requirements of a school or college are met. Under the Victorian EO Act, education providers must not discriminate against a student with a disability unless the necessary facilities cannot be reasonably provided. There is also a requirement to make ‘reasonable adjustments’. The DD Act specifies that discrimination in admission, access and staff harassment are unlawful. It requires education providers to make ‘reasonable adjustments’ to their programs to ensure that students with disability can access these on the same basis as other students, unless doing so would present an ‘unjustifiable hardship’ to the provider. The DDAct applies a more stringent test than the EO Act to determine this. Children with disabilities in Victorian schools have many difficulties receiving an education and are often subject to restrictive practices, isolation and restraint. If a person is experiencing discrimination in an education setting, or is not being provided with appropriate support, it may be appropriate to seek the assistance of Association of Employees withDisability (AED) Legal Centre, Disability Discrimination Legal Service (DDLS), Victorian Independent Office for School Dispute Resolution or Youth Disability Advocacy Service (YDAS). (See ‘Contacts’ at the end of this chapter). NOTE The DRC has made a range of recommendations about improving accessibility of the education system for people with disabilities, and phasing out segregated environments including special schools, where disabled children are separated from other children during their entire education. Employment Under the DD Act, an employer or prospective employer cannot lawfully discriminate against a person on the grounds of a disability (from advertising vacancies to consideration for promotion) unless the person with disability is unable to perform the ‘inherent requirements’ or the core components of the job. Under both the DD Act and the EO Act, there are requirements to make ‘reasonable adjustments’ to remedy discrimination and to meet the needs of employees with disability. In addition, when providing these adjustments in the workplace, the DD Act considers whether the costs of such adjustments present an ‘unjustifiable hardship’ to the employer. Considerations include the employee’s specific needs, the cost of the adjustment compared to the overall assets of the employer, and the impact of the adjustment on others. Under the DSA (Cth), ‘supported employment services’ means services to support the paid employment of persons with disabilities: a for whom competitive employment at or above the relevant award wage is unlikely; and b who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment. NOTE The DRC made a range of recommendations about improving access to employment for people with disability, including phasing out segregated settings such as supported employment. Employees can bring ‘general protections’ or ‘general protections dismissal’ claims under the Fair Work Act 2009 (Cth) (‘ FW Act ’) for adverse action taken by an employer because of their ‘physical or mental disability’ (s 351). Further, under the FW Act (s 352), an employer must not dismiss an employee because the employee is temporarily absent from work due to illness or injury of a kind prescribed by the FW Regulations. For more information about disability and employment, contact AED Legal Centre, JobWatch, YoungWorkers Centre or the FairWorkOmbudsman. (See ‘Contacts’ at the end of this chapter). Accommodation It is unlawful for providers of accommodation to discriminate against a person on the grounds of a disability under the DD Act or EO Act by refusing or deferring an application for accommodation, denying or limiting benefits associatedwith the accommodation, or evicting a person from accommodation on the basis of the person’s disability.