Page 564 - Week 03 - Tuesday, 19 May 1992
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but does not include -
(c) discrimination that is essential for the effective performance of the relevant duties, is not unlawful under the Discrimination Act 1991 and is prescribed; or
(d) discrimination that is not unlawful under the Discrimination Act 1991 and is in accordance with the equal employment opportunity program for the Brigade or a prescribed program.
I think Mr Kaine was concerned that in the Fire Brigade Bill that was opening a door that is not present elsewhere. In fact, that definition of "unjustified discrimination" is repeated, verbatim, throughout all the Bills. The Cemeteries (Amendment) Bill is another useful one to look at. These Bills cover large employers, such as the Fire Brigade or the Teaching Service, and some fairly obscure areas of ACT Government employment in relation to which people may not be aware that we have statutory authorities and statutory employment provisions. Again, in the Cemeteries (Amendment) Bill "unjustified discrimination", which is defined on page 4, includes the two forms of unlawful discrimination but does not include:
(c) discrimination that is essential for the effective performance of the relevant duties, is not unlawful under the Discrimination Act 1991 and is prescribed -
the same formulation - or:
(d) discrimination that is not unlawful under the Discrimination Act 1991 and is in accordance with the equal employment opportunity program or with a prescribed program.
That similar formulation appears throughout the Bills. In the ACTEW Bill, which was another one that was mentioned, "unjustified discrimination" paragraphs (a) and (b) appear on page 2 and paragraphs (c) and (d) are on page 3. So, there is a standard form of words for "unjustified discrimination" which allows discrimination that is essential for the effective performance of the relevant duties.
I suppose the point that was made, to some extent, in Mr Kaine's remarks was that in a position in the Fire Brigade which may involve a lot of physical activity, for an active firefighter - I have just been out to see a training exercise in which the Fire Brigade and the police were involved in an emergency response at Narrabundah - at the sharp end of the fire service, you would need to have a fairly high level of physical fitness, which otherwise may be discriminatory. If the Fire Brigade were employing somebody for clerical duties, "a high level of physical fitness" would be discriminatory.
By way of contrast, Mr Kaine referred to the electricity authority. Again, for most clerical or administrative positions there one would not expect that there would be a problem. As he said, the ACTEW ads show what they do. The ACTEW emergency crews who are on standby may, at any hour of the night, be dragged out in a storm to put back some powerlines; so they need to be fairly fit and
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