Employee drug discrimination may be okay: Government

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Employee drug discrimination may be okay: Government

Restricting discrimination to employees addicted to prohibited drugs is a consideration under recommendation two and three of a recent Federal Government-dominated Senate report.

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Restricting discrimination to employees addicted to prohibited drugs is a consideration under recommendation two and three of a recent Federal Government-dominated Senate report.

The controversial Federal Disability Discrimination Bill 2003 was sent to a Senate Legal and Constitutional Committee late last year after the Democrats and the Greens raised concerns about the Bill.

The provisions of the Bill allow employers and others to discriminate against people addicted to illicit drugs.

The Government-dominated Report handed down last week acknowledges the Bill is problematic, with the number one recommendation stating that ‘the Bill would benefit from wider consultation’.

However, recommendations two and three make it clear that if the Bill proceeds it should be restricted to the employment arena.   

In a dissenting report, the Democrats recommend that the Bill not proceed. Nor do they want an amended version applied to the employment arena only.

They would, however, like to see the Senate Committee findings used to assess current policy approaches to the treatment of drug addiction. 

Like the Democrats, the ALP doesn’t want the Bill to proceed. But in the event the Government decides to peruse an amended version of the Bill, the ALP recommends formal consultation with key drug policy makers and health professionals.

The Australian Chamber of Commerce and Industry (ACCI) is of the opinion that the Bill has no support from the Government, the ALP or the Democrats. 

In a submission to the inquiry, ACCI supported the overall Bill and its aims, but was critical of reforms concerning the definition of addiction to prohibited drugs and the operation of its exclusions.
Government stance

In the first instance, the Government Senators want the Bill to ‘be referred to the Ministerial Council on Drugs Strategy for consideration. This would have the benefit that all Commonwealth, State and Territory jurisdictions engaged in providing treatment services would be involved in the formulation of policies to address the implications of the Bill regarding accessibility and cost of services.’

However, the second recommendation indicates that if the ‘legislation is viewed as necessary for employment as in the case in the NSW Anti-Discrimination Act 1977’ then the Bill should proceed restricted to the employment arena.

The third recommendation reinforces this, indicating that if the Bill remains unchanged and proceeds as is it should be restricted to employment.

Government acknowledges problems

Under the provisions of the Bill, employers and others can not discriminate if drug addicted employees or other people are in a drug treatment program.

Relating to this point, the conclusion of the Government report acknowledges problems highlighted by ACCI concerning the Bill’s approach to defining addiction and treatment, and determining if a person is in a treatment program.

‘The repeated statement that the Bill will give certainty to individuals and organisations is questionable, given the evidence, including that from ACCI, which points clearly to the contrary,’ the Government report said.

‘The Committee is of the opinion that amending the Bill to provide detailed definitions is not a practical solution, given the complexity of diagnosing addiction and the range of treatment options available.’

The Democrats stance

In the dissenting report, the Democrats believe the Bill’s ‘technical flaws’ will not be fixed by restricting the Bill to the employment environment. They are concerned that in light of substantial evidence, there is still consideration to continue restricted support of the Bill.

The Democrats highlight the Government Senators reservations about the Bill. These include the Senators’ acknowledgement of ACCI’s ‘wide ranging concerns’, and their dissatisfaction with the Attorney-General’s claims that the existing regulatory framework is insufficient to address drug addiction, which they describe as ‘unconvincing’.

The evidence is ‘overwhelming’ that protections are already available to employers concerning addiction to illicit drugs, the Democrats said.

Existing provisions included in the Disability Discrimination Act address the need for employees to meet the inherent requirements of a job. There are also unjustifiable hardship provisions.

The Democrats added that employers can also rely on workplace performance measures and occupational health and safety and criminal law.

Confused employer rights are another area of concern for the Democrats. ‘Evidence was provided by the ACCI and others, that rather than clarifying the rights of employers and reducing litigation taken against employers, the Bill was likely to result in greater confusion, and place greater onus on employers to attempt to assess and monitor the addiction and treatment status of their staff.’

The Democrats recommend that the Bill be referred to the Ministerial Council on Drug Strategy for further assessment. With an emphasis on accessibility and availability of drug treatment services.

They want the Senate Committee findings considered in conjunction with the House of Representatives Standing Committee on Family and Community Affairs’ ‘Road to Recovery’ report.  The report is an inquiry into substance abuse in Australian communities.

They further recommend that the Government review its Tough on Drugs policy, with a view to a greater focus on harm minimisation and increased funding for treatment programs. This would target people addicted to both licit and illicit drugs.

The ALP

The ALP said in its dissenting report that the evidence presented at the hearing into the Bill shows that the Bill will leave employers in a greater state of uncertainty when it comes to determining who is in a legitimate drug treatment program, and who isn’t.

‘Labor Senators are concerned by evidence, including concerns raised by ACCI, that the term “treatment” is vague and is difficult for employers to determine. Labor Senators believe that in this respect the Bill is unworkable.'

The ALP recommends that the Government should consult with various parties if it wants to peruse the Bill, or an amended version of the Bill. These include the Ministerial Council on Drugs, health professionals, the Australian National Council on Drugs, and the Federal Privacy Commissioner.

ACCI

While it is critical of some elements of the Bill, ACCI continues to support reform in this area and will liaise with the Attorney- General regarding plans for future amendments in the area of drug discrimination.

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