(Cth) Insert the DDA definition of ‘Disability’ into the Fair Work Act 2009

Author: Alex Do | Publish date: 15/08/2025

Problem Identification: 

In Australia, the term ‘disability’ is not defined consistently under both the Fair Work Act 2009 (Cth) (FWA) and the Disability Discrimination Act 1992 (Cth) (DDA).

Section 4 of the DDA defines disability as ‘any total or partial loss, malfunction, or disfigurement of bodily or mental functions, or the presence of disease-causing organisms’, including past, present, future, or imputed disabilities, and encompasses behaviour that is a symptom or manifestation of the disability.

In contrast, sections 351 and 772 of the FWA use the phrase ‘physical and mental disability’, but section 12 (definitions) does not define ‘disability’. 

According to the Australian Disability Network (ADN), the FWA’s ‘lack of a definition of physical or mental disability leaves the definition of disability open to interpretation’ and reduces the scope of protection for employees with diverse disabilities. Dominique Allen, a socio-legal scholar, has highlighted that this can lead to inconsistent interpretations by courts and tribunals, which can lead to less comprehensive protection against workplace discrimination for people with disability.

Context 

The DDA makes it ‘unlawful to discriminate against a person, in many areas of public life, including employment, education, getting or using services, renting or buying a house or unit, and accessing public places, because of their disability’. It is known to address both physical and attitudinal barriers that prevent people with disabilities from fully participating in their communities. However, when it is a workplace discrimination related case, the courts will handle it primarily under the FWA. 

Sections 351 and 772 of the FWA address workplace discrimination by making it unlawful for employers to take adverse actions or terminate an employee’s employment based on personal attributes such as race, sex, physical or mental disability, and age. Together, these sections establish a legal framework that protects employees from being unfairly treated or fired due to these characteristics. If an employee believes they have been discriminated against, they can take this matter to the court to achieve a remedy such as ‘orders for injunctions, reinstatement and/or compensation’. 

However, the ADN has argued that this inconsistency between the FWA and the DDA has presented ‘challenges for employees with disability who are required to navigate a complex and contradictory legal landscape’. Allen has highlighted that varying juridical approaches have been used to ‘determine what disability means’, and ‘its approach has been far more restrictive than under the DDA.’ For example, in the 2011 Hodkinson versus The Commonwealth case, ‘disability’ was defined as a lack of competent power, strength or ability rather than the DDA’s definition. This led to the dismissal of the case, where it was found that the adverse action of the employer was contravening the DDA but not the FWA. 

At the same time, the Australian Human Rights Commission has also stated that in some cases, the term ‘physical or mental disability’ used in sections 351 and 772 is construed by a narrower interpretation than that of the DDA. Thus, the varying and narrow interpretations of 'disability' within the FWA is known to have created a legal inconsistency that can compromise the protections available to employees, particularly when compared to the broader scope of the DDA.

Furthermore, the ADN highlighted that the absence of a definition for disability in the FWA ‘fails to acknowledge disabilities which cannot be clearly defined as physical or mental, such as intellectual, sensory, neurological, and learning disabilities’. The ADN has noted that this could mean people with these disabilities might not receive the same protection as under the DDA. Moreover, the Department of Employment and Workplace Relations has emphasised that the FWA lacks protection for employees based on the past, present, or future characteristics of a disability, thereby reinforcing the reduced scope of protection for employees with diverse disabilities.

The Royal Commission into Violence, Abuse, Neglect, and Exploitation of People with Disability called to amend the FWA to ‘ensure the definition of ‘disability’ is consistent with the Disability Discrimination Act 1992 (Cth)’ and omit the ‘words ‘physical and mental’ preceding ‘disability’ in sections 351 and 772.’ They have said that this could provide employers and employees with clarity in all aspects of workplace protections for people with disability.

Advice/Legal Change: 

The Minister for Employment and Workplace Relations and the Minister for Disability should amend section 12 of the Fair Work Act 2009 (Cth), to insert the definition of ‘disability’ used in the Disability Discrimination Act 1992 (Cth), and amend section 351, and section 772 to omit ‘physical and mental’ preceding ‘disability’.

This could help to ‘provide employers and employees with clarity in all aspects of workplace protections for people with disability’.

Precedent:

There is international precedent for inserting the definition of 'disability' in legislation governing fair work practices. In the USA, the definition of ‘disability’ has a broadened scope of discrimination regulations to ensure that more individuals with disability are protected.

Download the 1-Page Brief Here - Insert the Disability Discrimination Act 1992 (Cth) defin.

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Public Support: 

1. Australian Human Rights Commission

2. Australian Disability Network

3. Department of Employment and Workplace Relations

4. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability

News coverage: 

• Link Disability Magazine - ‘Government opens review to Disability Discrimination Act’. In response to the Disability Royal Commission's final report, the Federal government has committed to a review of the Disability Discrimination Act to implement recommendations and strengthen protections for people with disability. By Link Disability Magazine | Mon 4 August 2025 - Read the article here.

• ABC - ‘Frustration over lack of progress after Disability Royal Commission’. A year after the government's response to the Disability Royal Commission, advocates are concerned that the slow pace of reform, stalled recommendations, and lack of transparency have not led to meaningful change. Presented by Evan Young | Thu 31 July 2025. Listen to the episode here.

• 9News - ‘Adelaide soccer club under fire after “telling boy he's not welcome”’. An Adelaide soccer club is under fire from the parents of a seven-year-old boy with autism after he was abruptly excluded from the team following an on-field altercation, with the family alleging a lack of clear explanation and a failure to refund his registration fees. By Gus MacDonald | Mon 19 May 2025 - Read the article here. 

• 7News - ‘Dylan was turned away from seeing his favourite band because he uses a wheelchair. Experts say it’s a common issue’. A man in a wheelchair was denied entry to a concert venue, despite its online claims of accessibility. By Hayley Taylor | Sat 10 Aug 2024 - Read the article here.

Where to go to learn more: 

• Adverse Effects: Can the Fair Work Act Address Workplace Discrimination for Employees With a Disability? - This journal article discusses how section 351 of the FWA offers limited protection against workplace disability discrimination due to the Act's lack of a "disability" definition and the courts' narrow interpretation of "discrimination. Read the article here. 

• People with Disability in Australia 2024 - This report focuses on the challenges that people with disability face routinely and actively in various aspects of life, including employment and discrimination. Read the full report here. 

• People with Disability and Employment - This submission focuses on the barriers people with disability face in employment, including discrimination, lower incomes, and the effectiveness of programs designed to increase their employment. Read the full submission here.

• Dead Ends - This report focuses on how Australia's social security system, particularly through tightened Disability Support Pension eligibility, is failing people with a partial capacity to work by pushing them onto the lower JobSeeker Payment, creating poverty traps and necessitating urgent policy reform. Read their report here.

• The Fair Work Ombudsman - ‘FWO’s disability support services Inquiry to build culture of compliance’ - The Fair Work Ombudsman has launched an inquiry into the disability support services sector to address systemic non-compliance with workplace laws and drive improved behavior among businesses and workers. Read the article here. 

• Fair Work Act 2009 (Cth) - This legislation establishes a national framework for employment standards, industrial relations, and the resolution of workplace disputes. Read the full Act here.

• Disability Discrimination Act 1992 (Cth) - This legislation makes it unlawful to discriminate against people with disabilities across various areas of public life, including employment, education, and access to goods, services, and facilities. Read the full Act here. 

Human Perspective: 

Eli, 25, who is an exceptionally talented graphic designer, found himself in a bewildering and frustrating situation. He lived with a complex neurological condition that, while not always visible, significantly impacted his energy levels and ability to concentrate for extended periods. When he started his new job, he was careful to discuss his needs for flexible breaks and a slightly adjusted schedule, believing he was protected by anti-discrimination laws. However, when his performance was later questioned due to perceived "lack of consistent output" during peak hours, and his requests for accommodation were subtly dismissed, he felt utterly lost. The company's HR department, trying to adhere to the Fair Work Act 2009 (Cth), seemed to struggle with understanding his condition because it didn't neatly fit their internal interpretation of a "physical and mental disability." Eli quickly learned that without a clear, consistent definition of 'disability' in the FWA, the very law that is meant to protect him became a blurry line, leaving him vulnerable to subjective interpretations by his employer and potentially diminishing his legal recourse, ultimately making his workplace feel anything but fair.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Allen, D. (2018). Adverse Effects: Can the Fair Work Act Address Workplace Discrimination for Employees With a Disability? The University of New South Wales Law Journal, 41(3), 846–870. https://doi.org/10.53637/SARS2540. https://www.austlii.edu.au/cgi-bin/viewdoc/au/journals/UNSWLawJl/2018/29.html

Australian Disability Network. (2023). Fair Work Act Submission. In Australian Disability Network. Australian Disability Network. https://australiandisabilitynetwork.org.au/wp-content/uploads/2023/05/Fair-Work-Act-Submission-May-2023.pdf

Australian Human Rights Commission. (2020). People with Disability and Employment. https://humanrights.gov.au/our-work/legal/submission/people-disability-and-employment-2020

Australian Human Rights Commission. (2025). Disability discrimination. https://humanrights.gov.au/our-work/disability-rights/disability-discrimination

Australian Law Reform Commission. (2011). General protections. https://www.alrc.gov.au/publication/family-violence-and-commonwealth-laws-dp-76/17-employment-the-fair-work-act-2009-cth-continued/general-protections/

Australian Public Service Commission. (2024, February 22). APS Disability Employment Strategy 2020-25. https://www.apsc.gov.au/publication/aps-disability-employment-strategy-2020-25

Department of Employment and Workplace Relations. (2023). Provide stronger protections against discrimination, adverse action and harassment. Australian Government. https://www.dewr.gov.au/2023-workplace-reform-consultations/consultations/provide-stronger-protections-against-discrimination-adverse-action-and-harassment

Department of Employment and Workplace Relations. (2024). Stronger Protections for Workers consultation paper. Australian Government. https://www.dewr.gov.au/workplace-reform-consultation/resources/stronger-protections-workers-consultation-paper

Disability Discrimination Act 1992 (Cth). https://www.legislation.gov.au/C2004A04426/2018-04-12/text

Fair Work Act 2009 (Cth). 

https://www.legislation.gov.au/C2009A00028/latest/text

Fair Work Ombudsman (2025a). FWO’s disability support services Inquiry to build culture of compliance. Australian Government. https://www.fairwork.gov.au/newsroom/media-releases/2025-media-releases/july-2025/20250729-disability-inquiry-media-release

Fair Work Ombudsman (2025b). Workplace discrimination. Australian Government. https://www.fairwork.gov.au/tools-and-resources/fact-sheets/rights-and-obligations/workplace-discrimination

Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011). (2015). https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2011/171.html    

Link Disability Magazine. (2025, August 4). Government opens review to Disability Discrimination Act. https://linkonline.com.au/government-opens-review-to-disability-discrimination-act/

Macdonald, G. (2025, May 19). Adelaide soccer club under fire after “telling boy he’s not welcome.” 9 News. https://www.9news.com.au/national/adelaide-soccer-club-young-boy-autism/d57b4873-146d-4997-8adf-5ad828bf407e

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. (2023, September 29). Final Report - Executive Summary, Our vision for an Inclusive Australia and Recommendations. https://disability.royalcommission.gov.au/publications/final-report-executive-summary-our-vision-inclusive-australia-and-recommendations

Soldatic, K., Bowman, D., Mupanemunda, M., & Mcgee, P. (2021). Dead ends: How our social security system is failing people with partial capacity to work. Brotherhood of St. Laurence. https://library.bsl.org.au/bsljspui/bitstream/1/12735/1/Soldatic_etal_Dead_ends_partial_capacity_to_work_2021.pdf

Taylor, H. (2024, August 10). Dylan was turned away from seeing his favourite band because he uses a wheelchair. Experts say it’s a common issue. 7NEWS. https://7news.com.au/news/dylan-was-turned-away-from-seeing-his-favourite-band-because-he-uses-a-wheelchair-experts-say-its-a-common-issue-c-15618393

Thomson, L. (2025, July 24). Disability employer Bedford Group makes shock voluntary administration announcement. 7NEWS. https://7news.com.au/news/disability-employer-bedford-group-makes-shock-voluntary-administration-announcement-c-19461930

U.S. Department of Labor. (2009, January 1). ADA Amendments Act of 2008 Frequently Asked Questions. https://www.dol.gov/agencies/ofccp/faqs/americans-with-disabilities-act-amendments

Young, E. (2025, July 30). Frustration over lack of progress after Disability Royal Commission. ABC Listen. https://www.abc.net.au/listen/programs/am/drc-one-year/105593806