Commonwealth Consolidated Acts

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Exception--inherent requirements

Inherent requirements

             (1)  This Division does not render it unlawful for a person (the discriminator ) to discriminate against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

                     (a)  the discrimination relates to particular work (including promotion or transfer to particular work); and

                     (b)  because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

             (2)  For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:

                     (a)  the aggrieved person's past training, qualifications and experience relevant to the particular work;

                     (b)  if the aggrieved person already works for the discriminator--the aggrieved person's performance in working for the discriminator;

                     (c)  any other factor that it is reasonable to take into account.

             (3)  For the purposes of this section, the aggrieved person works for another person if:

                     (a)  the other person employs the aggrieved person; or

                     (b)  the other person engages the aggrieved person as a commission agent; or

                     (c)  the aggrieved person works for the other person as a contract worker; or

                     (d)  the other person and the aggrieved person are members of a partnership; or

                     (e)  both of the following apply:

                              (i)  the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;

                             (ii)  the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.

Opportunities for promotion, transfer and training and registered organisations

             (4)  This section does not apply in relation to:

                     (a)  discrimination referred to in paragraph 15(2)(b) or (d), 16(2)(b) or (d), 17(1)(c) or (d) or 18(3)(c), other than discrimination in determining who should be offered promotion or transfer; or

                     (b)  discrimination referred to in section 20 (registered organisations under the Fair Work (Registered Organisations) Act 2009 ).

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