ࡱ> cebS@ qbjbj WBiE# j, @ T <)<)<)8t)d)T @h*L*"***{,-49-???????$BRD^@v |1*Y,"{,11@ **m2@@4441 *v *?4|1?44X5r{>T@ 6v {?*\* 0Z<)2|>?@>03<FE{?T T FE 6{? U--.4.|C/9U-U-U-@@T T D(l4"T T ( 25 245 October 2002 Human Rights and Equal Opportunity Commission Disability Rights Unit GPO Box 5218 SYDNEY NSW 1042 To the Disability Rights Unit, Re: Submission of Objection to application for exemption under disability discrimination Act Section 55 and Sex Discrimination Act section 44: Civil Aviation Medical Standards civil Air, the Association that represents Australian air traffic controllers, wishes to lodge an objection to the exemptions sought by the Civil Aviation Safety Authority (CASA) under section 44 of the Sex Discrimination Act (SDA) and section 55 of the Disability Discrimination Act (DDA) that would permit changes to the Civil Aviation Medical Standards. In particular, we object to the following subsections in the draft Part 67 of the Civil Aviation Regulations 1998: Part 67.160 (6) and (7) Part 67.165 Part 67.015 Part 67.235 These subsections propose changes that would alter the testing arrangements that presently apply for class 3 medical certificate holders with colour impaired vision and also propose to increase the medical checks required for pregnant air traffic controllers from the thirty first week of gestation. Overview Civil Air seeks that the application by CASA for exemption from the DDA and the SDA be refused on the basis that the changes proposed by CASA to Part 6 of the Civil Aviation Medical Standards would be in conflict with the objects of the Disability Discrimination Act and Sex Discrimination Act. Those objects in essence seek to eliminate discrimination on the basis of disability or gender. Our interest in this issue applies to discrimination in the workplace. In relation to the changes proposed by CASA to alter the testing regime for class 3 medical holders with colour defective vision (67.160(6) and (7)),; we are aware of operational air traffic controllers who are working despite their colour vision impairment. These people have been employed by Airservices for significant periods of time and their length of employment combined with an absence of any evidence of identified problems in performance suggests that these individuals are most able to carry out the inherent requirements of their particular employment. This continues to be the case in the current Australian Advanced Air Traffic System (TAAATS) environment where the colour palette has is certainly diversified. TAAATS has been operational since 1999. The condition has not to date been safety relevant in any way. In relation to pregnant air traffic controllers who hold a Class 3 medical, the proposed change would require these women to be checked by an obstetrician and a DAME weekly after week 31 from gestation until week thirty eight. We believe that this requirement is unreasonably onerous. These women are already under specialist medical supervision and as shiftworkers, will be quite strained to attend another medical appointment each week. We note that there is no scientific evidence to indicate that women in this period are likely to cause any immediate danger in their occupation as air traffic controllers where they are working with other qualified air traffic controllers. We understand that HREOC examines these applications for exemptions on the basis of the merits of the case. In this instance, CASA, in its application letter to Professor Alice Tay, relied on the safety risks associated with not granting the exemption and compliance with the international standards and recommended practices, as prescribed in Chapter 6 of Annexe 1 to the Convention on International Civil Aviation. They have stated, Conformity with international standards and practices prescribed under the Convention is necessary otherwise Australias regulatory regimes for aviation safety and practices would be put sat great risk of not being accepted by ICAO and other Contracting Sates. (Letter to Professor Alice Tay from Peter Ilyk, 29 July 2002) In relation to colour vision impairment, the relevant provisions in Chapter 6 of Annexe 1 to the Convention of International Civil Aviation, is at point 6.2.4 colour vision requirements which states that, 6.2.4.1 the applicant shall be required to demonstrate the ability to perceive readily those colours the perception of which is necessary for the safe performance of duties. The test thate ICAO standards recommend is a psuedoisochromatic plates test (Ishihara test) in daylight or in artificial light. If applicants fail this test, they must be able to readily distinguish the colours used in air navigation and correctly identify aviation coloured lights (Farnsworth Lantern). Guidance on suitable methods of assessing colour vision is contained in the Manual of Civil Aviation Medicine (Doc 8984). This international standard does not proscribe the methods of testing. ICAO does not propose that applicants must pass the psuedoisochromatic tests, only. On that basis we submit that the present model of using the Ishihara Plate test and then the Farnsworth Lantern test is within international guidelines particularly given that the overriding principle is that the applicant (in this case, air traffic controller) is able to perceive readily those colours the perception of which is necessary for the safe performance of duties. If CASA, or the employer of air traffic controllers, Airservices Australia, could provide evidence of incidents where the safety relevant aspect was attributable to the person being colour vision impaired there may be an issue to address. At this stage we are not aware of any evidence that suggests that there is or has ever been a safety issue associated with air traffic controllers who have passed the Farnsworth Lantern. The absence of an identifiable safety issue and the current test compliance with ICAO standards render the merits of the CASA application for exemption from the DDA and SDA nugatory. Submissions to address the following questions 1. Would an exemption in this case be consistent with the objects of the Disability Discrimination Act and the Sex Discrimination Act? Civil Air submits that an exemption granted to the Civil Aviation Safety Authority in the terms sought would be in conflict with the objects of the Disability Discrimination Act, which are listed at section 3 of that Act, being, (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: work, The changes proposed by the Civil Aviation Safety Authority would constitute discrimination in employment because these people would fail a Class 3 medical standard that prescribes the Ishihara or pseudoisochromatic psuedo-isochromatic plate test, in isolation. Currently, Australian air traffic controllers who have identified colour vision impairment need to pass the Ishihara test and if they fail this are tested using the Farnsworth Lantern Test. Passing the Farnsworth Lantern Test means that the applicant is declared, colour vision defective safe. The changes proposed by the Civil Aviation Safety Authority seek to alter the present standard. This is evident at 67.160: Who meets medical standard 3 (6) If a person applied for a class 3 medical certificate, the person must demonstrate that he or she meets the criterion in item 3.37 of table 67.160 by, in daylight, or artificial light of similar luminosity, readily identifying a series of psuedoisochromatic pseudo-isochromatic plates of the Ishihara 24-plate type, making no more than 2 errors. (7) If a change is made to a criterion in an item of table 67.160, a person who held a class 3 medical certificate and satisfied the criterion immediately before the change, but who fails to satisfy the criterion as changed, is taken to satisfy the criterion for 2 years after the day when the change is made. NoteUnder Annex 1, Personnel Licensing, to the Chicago Convention, medical standard 3 applies to holders of, or applicants for, air traffic controller licences. Colour perception requirement is also identified at 3.37, Colour perception3.37Can readily distinguish the colours that need to be distinguished for the safe exercise of privileges, or performance of duties, under the relevant licence NoteFor how to demonstrate this, see subregulation 67.160(6). There have not been any ATC performance issues, be they safety related or otherwise, to support these changes. The changes to the testing process for colour vision impaired people proposed by CASA are unnecessary and will certainly discriminate against current and future air traffic controllers with colour vision impairment. Discrimination in employment is dealt with at section 15 of the DDA. At clause 4, it states, (4) Neither paragraph (1)(b) nor (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's disability, if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability: (a) would be unable to carry out the inherent requirements of the particular employment; or would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer. We stand on the evidence of past practice and performance of employees with colour vision impairment to illustrate that these people are able to carry out the inherent requirements of their particular employment and indicate that the test that allows them to do so, the Farnsworth lantern test, does not cause unjustifiable hardship to their employer, Airservices Australia. The tests for colour vision impairment are conducted once only as the condition of colour vision impairment never alters. As an alternative, all other Class 3 medical tests such as eyesight, audio, physical fitness, cholestrolcholesterol level, diabetes, blood pressure must be conducted every two years because these results can change. Even accepting the proposition that the additional Farnsworth test is an expense, it not an ongoing expense and given the limited nature of the condition in males (8% or less), it is not required very often and if required would be conducted within the cost structures associated with normal biannual medical examination (at no additional cost). To allow the exemption sought by the CASA would mean that colour vision impaired people would not be able to work as air traffic controllers despite no evidence that the condition prevents them from performing the inherent requirements of the their occupation and on that basis we submit that the exemption conflicts with the object of the DDA. We note the findings of Mr. Barry L Cole AO, Professor of Optometry, Feb 1998, who prepared a report for Airservices Australia, Colour Vision Standards for Air Traffic Controllers the purpose of which was to advise, whether or not the current Australian colour vision standards for air traffic controllers is appropriate for operation of the Thomson radar TAAATS air traffic management system He provided three options for Airservices Australia to consider for risk minimisation, and we quote these directly from his report, Option 1 Exclude all persons with defective colour vision. Exclude all persons with abnormal colour vision on the grounds that there is risk and that there is no present method of test that has been shown to differentiate from among those with mild deutronomaly which ones may be handicapped in the operation of modern ATC systems. This option makes the presumption that the social and economic risks of air accident outweighs any social disadvanatagedisadvantage arising from the exclusion of a further 3% of men from employment in ATC. Mertens recommends this option and it is well supported by the evidence. It is an easy and inexpensive standard to administer. The high social and economic risks that could be associated with errors in air traffic control give further weight to the argument that all colour vision defectives should be excluded. Option 2- Introduce a test of the ability to distinguish surface colours additional to the Lantern Test Modify the existing standard in the following ways ensure that the standard based on the Farnsworth lantern is administered rigorously without exception or waiver so that those who pass are the more mildly affected anomalous trichromats, and subject those who pass the Farnsworth lantern to further tests to- identify and exclude those who have a protan defect by testing using the locally available Medmont C100 test or by referral to a colour vision clinic for testing with an anomaloscope. confirm (or otherwise) they have reasonable ability to distinguish surface colours. This can be done by administering and requiring a pass attat the Farnsworth Panel D15 test. These changes to the colour vision standard will ensure that only those with mildly defective colour vision and who do not have a reduced ability to see red signals undertake ATC duties. Option 3 - A practical test of performance with colour coded displays A third option is to develop a practical test to establish whether or not a person with defective vision is able to carry out the task of air traffic control using colour coded graphics displays. This option is an attractive one to those who are concerned that occupational health standards do not discriminate unfairly against people with disabilities. A practical test reassures those who are not convinced that presence of a disability in itself demonstrates that there will be reduced task performance. This is a reasonable viewpoint: it is necessary to show that the presence of a defect will impede practical performance and, if it is not possible to do this, then a test to exclude people with a disability would be discriminatory. However, in riposte, it can be said that the evidence supporting the view that defective colour vision is an impediment to satisfactory performance in tasks involving colour coding is quite compelling. This evidence has been summarises summarised in the sections above. It can also be said that there is no experimental evidence to show that persons with defective colour vision do perform such tasks equally as well as those with normal colour vision. It is not as if there is a conflict of evidence, there is evidence that defective colour vision is a risk factor and no evidence that it is not. In his final recommendation, Cole proposed to exclude from ATC all people with defective colour vision as this would be the least expensive option and because of the risks associated with such people not properly recognizing colours. As an alternative, for people who had a very mild defect and may not have any trouble with ATC colour codes, he proposed that such people must pass the Farnsworth lantern test and also seek an optometrists opinion about whether they have a deutean defect or a protan defect. The suggestion here being, we believe, to exclude people with a protan defect. For convenience we underlined the section in this report that shows how these tests can discriminate against people with diabilitiesdisabilities. Cole identifies the option that contains no risk and least cost (Option 1) but also notes that, it is necessary to show that the presence of a defect will impede practical performance and, if it is not possible to do this, then a test to exclude people with a disability would be discriminatory. On the basis of this material we submit that the case for the psuedoisochromatic psuedo-isochromatic test in isolation being fair or not discriminatory is undermined by Coles statements in the report provided to Airservices. The objects of the Sex Discrimination Act are at section 3. These objects include, (b) to eliminate, so far as is possible, discrimination against persons on the ground of .pregnancy. The proposal at Subsection 67.235 provides under the heading Suspension of medical certificates pregnancy that, Despite subregulation (1), a pregnant woman who holds an air traffic controller licence may continue to exercise the privileges of the licence until the end of the 38th week of gestation if: (a) the medical practitioner who is attending the woman certifies her continued medical fitness to do so each week beginning at the 31st week of gestation; and (b) a DAME certifies the womans continuing aeromedical fitness to do so each week beginning at the 31st week of gestation; and (c) another person who holds an air traffic controller licence, and is medically fit and able to take over responsibility for the function, is on duty and available at the times when she does so. The object of the Act is to enable to work whilst pregnant unless there is a genuine occupational qualification to justify differential treatment. The provisions as proposed by CASA, do allow these air traffic controllers to continue to work which we appreciate, however, they stipulate a level of medical supervision that we submit is unjustified on the scientific material available. 2. Should an exemption be granted irrespective of consistency with objects of DDA and SDA? HREOC in exercising its exemption power must take into account the limitation in the objects of both the DDA and the SDA to eliminate discrimination "as far as possible". It is clear that a significant risk of serious harm may arise from a person in a position of responsibility in aviation being or becoming incapacitated in performing their responsibilities. It also appears clear that some disabilities may involve, or lead to, incapacity to carry out the relevant responsibilities safely. However, CASA has not satisfactorily demonstrated how colour vision impairment presents a safety issue. Yet, without evidence and in conflict with the testing identified as acceptable under international guidelines, they propose changes to the CAR medical standards that require exemptions from the DDA. It is also by no means clear that pregnancy in itself presents any particular risk, particularly as these women are under specialist medical supervision on a weekly basis from the 31st week of gestation and do not work single person shifts or without supervision. The people who will be affected by these changes are presently employed and have to our knowledge had no issues in their professional lives that arise from the condition of colour vision impairment or pregananycpregnancy. On that basis, the changes to the standards are discriminatory, in one case because they will exclude people from working in the occupation and in the other because the standarsstandards require a version of medical supervision that is above and beyond that of all other employees with statistically the same likelihood of collapse at the console or inability to perform their work task(s). The risks involved have not been made out to the extent that the exemption sought by CASA to the objects of these Acts is warranted. 3. Is there an arguable case of unlawful discrimination to require an exemption? HREOC, will not grant an exemption where it is unnecessary - that is, where there is not at least an arguable case that unlawful discrimination will otherwise be found. Comments are requested on whether there is a substantial risk of reasonable safety decisions under the Civil Aviation Regulations being found unlawfully discriminatory so as to justify an exemption under the SDA and/or DDA. The constitutional foundations of the DDA include the Discrimination (Employment and Occupation) Convention 1958 which provides that distinctions based on the inherent requirements of a particular job are not to be regarded as discrimination. Section 15 of the DDA recognises accordingly that it is not unlawful discrimination in employment to dismiss or fail to employ a person who cannot perform the inherent requirements of the particular position. Similarly section 19 of the DDA recognises that it is not discrimination for a 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, to refuse, withdraw or place conditions on that authorization if the person because of his or her disability, would be unable to carry out the inherent requirements of the profession, trade or occupation. This provision would appear to mean that so long as decisions that a person's disability prevents them from performing safely are made correctly, no unlawful discrimination will occur in implementing the existing or proposed Civil Aviation Regulations regarding people with a disability who are or wish to work as employees of a professional occupation. The Sex Discrimination Act does not refer to the Discrimination (Employment and Occupation) Convention and does not rely on that Convention, rather than the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), for its constitutionally valid application. Its objects are accordingly required to be construed by reference to the CEDAW convention first and foremost. The CEDAW Convention does not use the concept of inherent job requirements. However, in relation to pregnancy it does recognise (in article 11) that some limitations on work by pregnant women may be justified, so long as these are established on scientific grounds and regularly reviewed. Exemptions under the SDA may be made subject to conditions determined by HREOC, as may exemptions under the DDA. It would be possible for an exemption under either Act to be limited in its reach to protect only those decisions made where there are reasonable grounds to conclude that exclusion or restriction is necessary to protect aviation safety. We do not believe that that the provisions as proposed are necessary to protect aviation safety. 4. Are there conditions which should be imposed on the granting of an exemption in this matter? HREOC proposes that if it were found appropriate to grant an exemption in this matter, possible conditions might include conditions designed to ensure that decisions to restrict or refuse licenses for people with disabilities or pregnant women are made accurately or reasonably based on evidence requirements for CASA to take account of current and expert opinion (noting the reference in the CEDAW Convention to the need for any restrictions on work by pregnant women to be regularly reviewed in the light of scientific developments) conditions to ensure accountability for decisions made - such as publicly and regularly reporting to HREOC on decisions made under the exemption. Our association has nothing to rely to indicate that the Civil Aviation Regulations (in their existing or proposed form) are accepted as establishing a scheme for appropriate assessment of the capacity of air traffic controllers to perform the inherent requirements of those occupations. Although the ability to discharge the duties of air traffic control safely is an obvious inherent requirement of this employment or occupation (see the decisions of the High Court in X v the Commonwealth and  HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/1999/63.html" HREOC  HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/1999/63.html" X v the Commonwealth and HREOC HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/1999/63.html" X v the Commonwealth and HREOC  and  HYPERLINK "http://www.austlii.edu.au/au/cases/cth/high_ct/1998/18.html" Qantas v Christie on inherent requirements) it has yet to be demonstrated that that the people who will be affected by these changes are unable to discharge their duties safely. We accept that HREOC must be governed by whether or not the exemption is necessary because the issue involves possesses significant public safety implications. However, in this matter, we submit that the case for the impact on public safety is not well made out by the applicant. However, we would be persuaded by any substantive evidence that CASA coudcould bring to justify this application for exemptions from the DDA and SDA. Conclusion We trust that the Commission will be better placed to evaluate the merits of the Civil Aviation Safety Authoritys application for exemptions from the SDA and DDA on the basis of the issues that are raised in submissions received that contest the exemptions sought. We firmly believe that on evidence alone, the application should fail as the safety issues have not been made out and international practice and guidelines are not different to the regulations we have in place in Australia today. Although the exemptions sought by CASA are temporary exemptions (five year period), there is no protection for current employees from the effect of the proposed regulations on their continued employment in air traffic control. Finally, on the matter of colour vision impairment, we reiterate that we are not aware of any safety issue arising in the three and half years of TAAATS thus far, nor are we aware of any problem for those people whom have been operational controllers for over twenty years and exercising a class 3 medical under the Farnsworth lantern test. Granting an exemption to CASA would mean those people currently working in air traffic control without any safety incident attributable to their condition, would be out of employment. For those people with minor colour vision impairment seeking employment as an air traffic controller, they would be unable to do so without any evidence to suggest that they are unable to fulfillfulfil the inherent requirements of the position. We note again the comments of Cole that, A third option is to develop a practical test to establish whether or not a person with defective vision is able to carry out the task of air traffic control using colour coded graphics displays. This option is an attractive one to those who are concerned that occupational health standards do not discriminate unfairly against people with disabilities. A practical test reassures those who are not convinced that presence of a disability in itself demonstrates that there will be reduced task performance. This is a reasonable viewpoint: it is necessary to show that the presence of a defect will impede practical performance and, if it is not possible to do this, then a test to exclude people with a disability would be discriminatory. The undersigned is available to further discuss any aspect of this submission that the Human Rights and Equal Opportunity Commission requires. Yours sincerely, Simone Berenyi Industrial Officer xSimone B. 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