What meets the 'disability' criteria when an employee applies for a Flexible Workplace Arrangement?
March 10, 2011
The commencement of the National Employment Standards (NES) at the beginning of last year saw the introduction of Flexible Working Arrangements. These Arrangements provide eligible employees the opportunity to apply for more flexible working conditions as a result of their caring responsibilities of a child. One of the eligibility requirements is that the employee cares for a child under the age of 18 years who requires care as a result of a disability.
The Fair Work Act 2009 (Commonwealth) (the FW Act) however, does not actually provide a definition of what a disability is.
This begs the question of what requirements an employee must actually meet when applying for a Flexible Working Arrangement under the Disability criteria, thus creating a tricky issue for employers in assessing the criteria when making a decision to implement such an arrangement.
When faced with an application on this basis, employers may seek guidance from the Disability Discrimination Act 1992 (Commonwealth) (the Disability Act). Although, not specifically referred to in the FW Act, with relation to Flexible Working Arrangements, the Disability Act 1992 provides an extensive definition of what a disability is.
The Disability Discrimination Act 1992 (Commonwealth) provides the following:
disability, in relation to a person, means:
- total or partial loss of the person’s bodily or mental functions; or
- total or partial loss of a part of the body; or
- the presence in the body of organisms causing disease or illness; or
- the presence in the body of organisms capable of causing disease or illness; or
- the malfunction, malformation or disfigurement of a part of the person’s body; or
- a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
- a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
- presently exists; or
- previously existed but no longer exists; or
- may exist in the future (including because of a genetic predisposition to that disability); or
- is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Although this definition provides employers with some guidance on the matter, neither Fair Work Australia nor the Fair Work Ombudsman have provided any guidance as of yet on what is to be considered as falling within the definition of ‘disability’ for the purpose of these arrangements.
When facing an application for a Flexible Working Arrangement on the basis of caring for a child with a disability, Livingstones recommends that employers keep in mind that an employee’s circumstances can often be of a very personal and sensitive nature.
Therefore, in these situations extra caution, consideration and good judgement can often lead to a more positive outcome for both the employer and the employee.
If you would like further information regarding other aspects of the eligibility criteria for Flexible Working Arrangements, or if one of your employees has made an application for an arrangement and you are seeking guidance on how to best approach this, please do not hesitate to contact Matthew McDonald on (07) 3833 1254.
