Does Australia Need Disability Leave In the Fair Work Act?

Just over 2 million Australians currently working are living with a disability, but there is no protection for them if they need to take time off to manage their disability. Should there be?

The Fair Work Act 2009 includes ten non-negotiable National Employment Standards enshrining basic rights for workers. Six of these give rights to leave: Parental leave, annual leave, personal/carers leave and compassionate leave, community service leave, long service leave and public holidays. Other forms of leave (study leave, bank holidays etc..) may be covered in an award or enterprise agreement.

The United Kingdom has these as well, they also have a form of leave not known in Australia: Disability leave.

This is an extract from the University of Sheffield’s leave policy:

“The University will ensure that all reasonable measures are taken to support disabled staff and appreciates that staff with disabilities may require, at particular times, time off specifically for treatment, assessment or rehabilitation related to their disability.” (University of Sheffield Disability leave policy)

In the UK employers, unions and disability rights organisations have taken up this disability leave campaign with gusto seeing it as a practical way of ensuring an active disability policy rather than mere paper words. It is not part of their legislation as such, it forms part of most award/enterprise bargaining agreements where it exists, but it is not just a social/industrial campaign. The backbone for disability leave in England is their Equality Act 2010, in particular the “reasonable adjustment” requirements embedded in this legislation.

So how does it work?

Firstly, disability leave is not sick leave:

From Luton Council’s leave policy:

“Chief Officers at Luton Council are authorised to grant up to 20 days paid absence every year to disabled employees needing counselling related to their disability specialised training or ad-hoc treatment. This is not a replacement for sick leave and can only be taken when the employee is “well‟.” (unison bargaining support paper 2016)

Sick leave remains for people who are sick. Disability leave for what may be called maintenance. It’s a practical solution to a significant problem faced by disabled workers.

The other part of this is an attitudinal change which recognises disability in the workplace as a social problem, not a medical problem.

Currently, in Australia if a disabled worker needs to visit a doctor or other medical service for a check up or other need but are not sick they have few choices. They take it as “personal leave” which in most companies is still sick leave and therefore they need a medical certificate or they take it as holiday leave. Both of these options is discriminatory in that a disabled worker loses leave and free time to manage something innate and unchangeable, they are treated differently within the system.

What can Australia do?

We should at a minimum follow England’s leave and lobby employers to include a disability leave clause in their awards and enterprise agreements. That is reasonable – it would demonstrate that companies take diversity seriously and systemically but this wouldn’t give that right to all workers and all disabled worker need this right.

Do we actually need to include it in the Fair Work Act?

The Fair Work Act is the minimum standards that all employers need to abide by. By including disability leave as a national employment standard we would ensure that disabled workers have the same rights to be sick or take holidays or manage their time as the rest of the working population has now. It would demonstrate that Australia takes the needs of disabled workers seriously and acts to ensure our workplaces are inclusive. We spend millions on encouraging employers to employ disabled workers, some employers spend thousand advertising that they are an active and responsible employee of disabled workers on bus stop billboards in our cities (Woolworths for example). What we lack is a means to keep their disability policies live, taking the decision away from companies and making each company adhere to the same policy would be beneficial not only to disabled workers but to their employers as well.

Beyond that, we should have disability leave in the Fair Work Act because it needs to exist in Australia. There is a need for it but no right to it, the Fair Work Act would make it a right, and that, if for no other reason is why our Fair Work Act needs to include disability leave.

Want to read about how they do this in the United Kingdom? Click here to Read what Unison is doing