It's About Time - Chapter 3

It's About Time

Chapter 3:

Legal protection for workers with family and carer responsibilities

3.1 Introduction

3.2 Australia's human rights obligations for workers with family and carer responsibilities

3.3 Limitations of federal discrimination law

3.4 The need for law reform

3.5 Conclusion

3.1 Introduction

Men and women with family and carer responsibilities may find themselves disadvantaged in the workplace when compared to workers without these responsibilities.

At a federal level, workers have some protection against discrimination on the grounds of family and carer responsibilities, but these protections have significant limitations.

This chapter considers the existing protections for workers with family and carer responsibilities (focusing on the area of federal discrimination law); the limitations of these laws; and the need for law reform to extend greater protection to these workers.

3.2 Australia's human rights obligations for workers with family and carer responsibilities

Australia has obligations at both domestic and international levels for workers with family and carer responsibilities.

International legal obligations

Australia has agreed to be bound by a number of International human rights treaties which protect the principles of equality and non discrimination and the rights of people with family and carer responsibilities.

• Convention (No 156) Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities 1

The Convention (No 156) Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (ILO 156) 2 deals most directly with this area. Amongst other things, ILO 156 obliges Australia to:

• take account of the needs of workers with family responsibilities in terms and conditions of employment;3 and
• ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.4

The provisions of the Sex Discrimination Act that proscribe discrimination on the grounds of family responsibilities were introduced in 1992 to give effect to certain provisions of ILO 156.5

• Convention on the Elimination of All Forms of Discrimination Against Women

Family responsibilities are dealt with in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).6 CEDAW requires governments to "take all appropriate measures to eliminate discrimination against women in... employment"7 and to "encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities".8

The Preamble to CEDAW states that:

...the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole...

The preamble recognises:

... the great contribution of women to the welfare of the family and to the development of society, so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the upbringing of children...

"[and that] ... a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women... "9

Relevantly, the objects of the Sex Discrimination Act include to give effect to certain provisions of CEDAW.10

• Convention (No 111) Concerning Discrimination in respect of Employment and Occupation

Principles of non-discrimination in employment are also dealt with in the Convention (No 111) Concerning Discrimination in respect of Employment and Occupation(ILO 111).11 ILO 111 is scheduled to the HREOC Act and is aimed at preventing and eliminating discrimination in employment on a number of grounds, including sex. "Discrimination" for the purposes of ILO 111 is defined to include:

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation... 12

Further, ILO 111 provides that countries can add categories to the list of prohibited distinctions. In 1989 Australia added discrimination on the grounds of age and discrimination of mental, intellectual or psychiatric disability or physical disability to that list when the Human Rights and Equal Opportunity Regulations were proclaimed.13

Article 5(2) of ILO 111 provides that governments may determine that special measures, designed to meet the particular requirements of persons who, for reasons such as sex, age or family responsibilities, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.

• Convention on the Rights of the Child

The lives of children are inextricably bound up with the lives of their family. The Convention on Rights of the Child (CRC)14 sets out obligations that are relevant to the area of paid work and family responsibilities. The preamble to the CRC recognises that:

... the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community...

The Committee on the Rights of the Child, which monitors compliance with the CRC, has emphasised that "the human rights of children cannot be realized independently from the human rights of their parents, or in isolation from society at large".15

When workers are discriminated against on the basis of their family responsibilities this may have a negative impact on the children who they are caring for. In some circumstances, discrimination against a child's parent may arguably result in discrimination against the child. Relevantly, article 2(2) of the CRC states:

States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Helping families to better balance paid work and family responsibilities is also consistent with the "best interests of the child" principle set out in article 3(1) of the CRC. Article 3(1) provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Under article 5, Australia must respect the responsibilities and duties of parents.16 Article 18(1) of the CRC specifically recognises that both parents have "common responsibilities for the upbringing and development of the child" and that "the best interests of the child will be their basic concern". Under article 18(2) Australia must "render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children". Article 18(3) also obligates State Parties to take appropriate measures to ensure that children of working parents have the right to benefit from child care services and facilities.

• International Covenant on Civil and Political Rights

Under the International Covenant on Civil and Political Rights (ICCPR)17 Australia must ensure that women and men enjoy their human rights equally and without discrimination and are equal before the law (articles 2 and 26). Article 23(1) of the ICCPR recognises that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State".

• International Covenant on Economic, Social and Cultural Rights

Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)18 states that all people should enjoy the rights set out in the ICESCR without discrimination. As well as expressly prohibiting discrimination on the basis of sex, ICESCR prohibits discrimination on the basis of age under the grounds of "other status".19 The Committee on Economic, Social and Cultural Rights, the committee that monitors compliance with the ICESCR, has observed that "older workers who have not yet reached retirement age, often encounter problems in finding and keeping jobs" and stressed "the need for measures to prevent discrimination on grounds of age in employment and occupation".20

Article 10(1) of the ICESCR provides that State Parties recognise that "the widest possible protection and assistance should be accorded to the family", particularly "while it is responsible for the care and education of dependent children". Article 10(2) recognises that "special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits".

Article 7 of the ICESCR provides that States Parties must recognise the right of everyone to just and favourable conditions of work, including fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work and remuneration which provides a decent living for workers and their families. Article 7 sets out the right to safe and healthy working conditions, equality opportunity in promotion, and the right to "rest, leisure and reasonable limitation of working hours".

Developing areas of international human rights law

Human rights law is developing to better address issues such as the needs of older people and the rights of people with disability.

As set out above, under the ILO Convention 111 Australia has an obligation to prevent and eliminate discrimination in employment that occurs on the basis of age and disability. In addition to this protection, the Convention on the Rights of Persons with Disabilities,21 which was adopted by the United Nations General Assembly in 2006, prohibits all discrimination on the basis of disability.

The United Nations have also adopted a number of non-binding principles which recognise the rights and needs of older people. In 1991, the United Nations General Assembly adopted Principles for Older People. These principles highlight the importance of the role of the family in providing care for older people.22

In 2002, the UN Second World Assembly on Ageing adopted the Madrid Political Declaration and International Plan of Action on Ageing (MIPAA).23 The purpose of MIPAA is to improve the social and economic conditions of older people. Relevantly, MIPAA recognises "the crucial importance of families, intergenerational interdependence, solidarity and reciprocity" and the "provision of health care, support and social protection for older persons".

Federal discrimination law

Some of the international legal obligations discussed above provide, in part, the constitutional basis for the federal discrimination laws.

At the federal level, the government has enacted the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) and the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act). These laws provide some protection against discrimination for workers with family and carer responsibilities.

The Sex Discrimination Act makes it unlawful to discriminate on the grounds of sex,24 marital status,25 pregnancy or potential pregnancy26 in certain defined areas of public life, including employment, education and the provision of goods, services and facilities.27

The Sex Discrimination Act also makes it unlawful to discriminate against a person on the ground of their family responsibilities by dismissing them from employment.28

The family responsibilities provisions were inserted into the Sex Discrimination Act in 1992 to give effect to Article 8 of ILO 156 which obliges Australia to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment.29

HREOC notes that the family responsibilities provisions were introduced in 1992 as a first stage of Australia's implementation of ILO 156. In enacting these limited provisions, Parliament contemplated that wider provisions would be enacted at a later stage after further consultation.30 Amongst other things, ILO 156 obliges Australia to:

• take account of the needs of workers with family responsibilities in terms and conditions of employment;31 and

• make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.32

However, neither the Sex Discrimination Act or the Workplace Relations Act fully implements ILO 156, and more needs to be done to meet these obligations.33

The Disability Discrimination Act provides some protection against discrimination for workers with disability who may also have family or carer responsibilities and also those workers who are "associates" of people with disability. The term "associate" is defined in the Act to include, inter alia, a carer.34 The Disability Discrimination Act makes it unlawful for an employer to discriminate against a person on the ground of the other person's disability or a disability of any of that other person's associates:35

• in the arrangements made for determining who should be offered employment;
• in determining who should be offered employment;
• in the terms or conditions of employment;
• by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
• by dismissing the employee; or
• by subjecting the employee to any other detriment.

However, the Disability Discrimination Act also provides the employer with a defence to a claim of unlawful discrimination in circumstances where:36

• a person is unable to carry out the inherent requirements of the particular employment; and
• unjustifiable hardship would be imposed upon an employer in order for them to avoid discriminating against the aggrieved person.

Along with these federal discrimination laws, the States and Territories have enacted various laws which prohibit discrimination including on the grounds of sex, parental status and family and carer responsibilities.37

The importance of federal discrimination law

The Striking the Balance discussion paper asked whether anti-discrimination legislation assists men and women to achieve a better balance between their paid work and care responsibilities, and whether any amendments were necessary.38

Submissions responding to this question agreed on the importance of anti-discrimination laws in addressing inequality between workers who have family/carer responsibilities and those who do not. The submissions highlighted the importance of anti-discrimination laws in two principal respects.

• First, anti-discrimination laws provide a legal avenue for redress for discriminatory acts and practices.

Submissions from the Equal Opportunity Commission Victoria, the Queensland Government and Belinda Smith stated that individual complaint mechanisms are important as they provide opportunities for workers to seek individual redress for discrimination in the workplace.39

• Second, anti-discrimination laws promote principles of non-discrimination as they are a public policy statement of the right to equality.

As Beth Gaze noted, the Sex Discrimination Act is significant as a public condemnation of sex discrimination, understanding it "not just as something that happen[s], but as something unlawful".40 Similarly, Belinda Smith stated that anti-discrimination laws promote "non-discrimination through the persuasive, normative power of a legislated, public policy statement of the right to equality."41

The twin capacities of anti-discrimination laws to provide an avenue of legal redress for discriminatory acts and to influence social institutions and individuals by promoting principles of non-discrimination are central to the considerations of law reform in this chapter.

3.3 Limitations of federal discrimination law

Despite their important role in supporting workers with family and carer responsibilities, HREOC is concerned that the existing protections for workers with family and carer responsibilities have significant limitations. These limitations are set out below.

The family responsibilities provisions of the Sex Discrimination Act are limited

As set out above, the Sex Discrimination Act makes it is unlawful to "directly" discriminate against an employee on the basis of their family responsibilities by dismissing the employee.42

The family responsibilities provisions of the Sex Discrimination Act are more limited than the other grounds of discrimination.43 The provisions:

• only apply to discrimination that results in dismissal from employment;

• are limited to "direct" discrimination, leaving no protection against "indirect" discrimination (Indirect discrimination occurs when a person imposes a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons with family responsibilities. For example, a prohibition on part time work will disadvantage workers who cannot work full time because of their family responsibilities);

• only apply to employment (family responsibilities discrimination is not unlawful in any other area of public life, for example, education or access to goods and services); and

• may not protect all caring relationships.44

The other grounds of discrimination in the Sex Discrimination Act (including sex and pregnancy) offer protection against both "direct" and "indirect" discrimination, provide redress for discriminatory treatment in employment generally and extend to a variety of areas of public life, including for example, education.

It is unsurprising, therefore, that the family responsibilities provisions are little used.

Indirect sex discrimination provisions and men

Although both men and women underutilise the family responsibilities provisions of the Sex Discrimination Act, women are able to rely on the indirect sex discrimination provisions of the Act as an alternative form of redress for disadvantage arising from their family/carer responsibilities. This is because as women continue to carry out the bulk of unpaid caring work, acts of discrimination which disproportionately impact on people with family responsibilities, disproportionately impact on women as a group.45

In a series of federal cases, women who have encountered problems accessing part time work or other flexible work arrangements upon their return to work from maternity leave have successfully argued that a requirement to work full time and without flexibility as to hours of work is a condition, requirement or practice which has the effect of disadvantaging women. The courts have accepted, sometimes as a matter of judicial notice without any specific evidence, that this disadvantage stems from the fact that women are more likely to require flexible work arrangements to meet their family/carer responsibilities.46

While these cases provide a broader platform for redress for women, men are confined to relying on the more limited family responsibilities provisions alone.

In addition, the result of women's reliance on indirect sex discrimination provisions may be that the law as it stands further entrenches the position of women as unpaid caregivers by linking only women to family responsibilities.47 This may in turn further discourage the more equal sharing of family/carer responsibilities and limit women's workplace participation.

These potential difficulties were identified in the submissions. For example, the Men's Information and Support Centre noted that the restrictions on men's use of the indirect sex provisions of the Sex Discrimination Act "serves to entrench traditional 'breadwinning' roles as the responsibility of men and discourages a more equal sharing of paid work".48

Men's more limited use of the Sex Discrimination Act generally

The Striking the Balance discussion paper noted that despite the fact that the family responsibilities provisions of the Sex Discrimination Act are equally available to both men and women, men have not generally made use of them.49 The Striking the Balance discussion paper asked why men do not make more use of the family responsibilities provisions of the Sex Discrimination Act.50

Some submissions pointed to the language of the Sex Discrimination Act and perceptions about its application as barriers to men seeking greater assistance from it. One submission argued that: "In its current form and interpretation, it [the Sex Discrimination Act] reinforces stereotypes and traditional role assumptions".51

Submissions also noted a number of related reasons for men's low usage of the Sex Discrimination Act. These included the suggestion that as a result of the restrictions on men's use of the indirect sex provisions (detailed above), men see their claims as less viable.52 Another suggestion was that men are less likely to request family-friendly work arrangements (and thus less likely to be denied them) or alternatively, more able to negotiate directly with their employers about problems as they have more bargaining power.53

Of course, it is also possible that men's limited use of the family responsibilities provisions reflects the reality that women in fact bear the major responsibility for caring in our society. The ACT Human Rights Office (on behalf of six State and Territory human rights agencies) argued that the fact that men cannot use the sex discrimination provisions to ground an indirect discrimination claim relating to family responsibilities:

is more a reflection of the continuing gender inequality at home, than of a defect in the legislation ... On the other hand, it means the SD Act has limited leverage as a tool for change, and there is no justification for limiting the family responsibilities ground to direct discrimination.54

General limitations of anti-discrimination legislative schemes

Submissions also identified some general limitations within anti-discrimination legislative schemes, particularly with aspects of the complaints process.55

For example, one submission referred to the burden on the individual complainant of collecting the necessary evidence.

Gathering sufficient evidence to prove on the balance of probabilities that a worker's family responsibilities was a substantial reason for an unfavourable decision by an employer, or gathering evidence to show a term or condition of work being imposed by an employer is not reasonable ... can often be a very difficult task.56

A number of other submissions argued that while the complaints process is an important remedy for individuals who feel aggrieved by discriminatory conduct, it can fail to promote systemic change.

The Women Lawyers Association of NSW noted that a limitation of the Sex Discrimination Act is that it "only addresses individual acts of discrimination within specific fields of activity for which a person may make a complaint" and that it "it is unable to challenge directly gender bias or systemic discrimination in the context of the law."57 Similarly, the Equal Opportunity Commission of Victoria noted that the complaints process is "not designed to achieve large scale change or prevent repeated instances of discrimination of the same type".58

HREOC recognises that making a complaint of discrimination requires commitment on the part of the complainant as well as a significant commitment of time, and if a matter is pursued to the courts, money. It is true that individual complaints do not in themselves require an ongoing systemic change either by the respondent or across industries. However, the power of an individual complaint to effect change over time by establishing better practices should not be underestimated, for example, through conciliated outcomes and establishing legal precedents which promote flexible work practices.

HREOC agrees with the statement of the Anti-Discrimination Commission Queensland that while the complaints process is "an important and significant mechanism", it should not be "the sole means of ensuring workplaces adequately accommodate the various needs of workers with family responsibilities".59 In this regard, HREOC points to the importance of its education, public awareness, research and legal intervention functions which operate alongside the complaints process. These policy functions, of which this women, men, work and family project is an example, stimulate systemic change and assist to implement the norms that are established through the complaints process. These policy functions have been incorporated into HREOC's recommendations for law reform below.

3.4 The need for law reform

Current federal anti-discrimination law provides insufficient protection for men and women workers with family and carer responsibilities, and a limited platform to support and promote systemic change.

There are a number of possibilities for expanding the protections available to these workers. The options canvassed during the Striking the Balance submission process are set out below, together with HREOC's recommendations as to the most appropriate law reform.

Extending the family responsibilities provisions

For the most part, submissions to HREOC strongly supported extending the family responsibilities provisions of the Sex Discrimination Act to remove the existing limitations on these provisions, as set out above in section 3.3.

Submissions supported extending the family responsibilities provisions in the following respects.

• To make unlawful discriminatory treatment in all aspects of employment, rather than restricting protection to discriminatory treatment that results in dismissal.60

The Law Institute of Victoria recommended that the ground of family responsibilities discrimination should be expanded to "cover the entire area of employment rather than the current restriction to discrimination regarding termination of employment. We note that other federal anti-discrimination legislation is not similarly restricted".61 The Equal Opportunity Commission of Victoria also noted that "the pregnancy and sex discrimination provisions operate far more expansively [than family responsibilities] ...".62

• To make unlawful indirect family responsibilities discrimination.63

The disadvantage that workers experience because of family responsibilities is often the indirect effect of inflexible workplace practices. Work requirements that seem to be fair because they apply to all employees, such as the requirement to work overtime in order to apply for a promotion, may in fact disadvantage workers with family responsibilities.64

Belinda Smith argued that in limiting family responsibilities discrimination to direct discrimination the Sex Discrimination Act "fails to address the primary forms of family responsibilities discrimination which are structural and systemic (which indirect discrimination prohibitions better address), rather than individual and blatant (which direct discrimination prohibitions best address)".65

• Extending the definition of family responsibilities to include all forms of care and a broad definition of family members.

Submissions advocated the extension of "family responsibilities" protection to all workers with carer responsibilities.66 This would provide protection to workers based on the nature of their responsibilities rather than the more arbitrary nature of their relationship to the person requiring care.

However, not all submissions supported the extension of the family responsibilities provisions in the Sex Discrimination Act. Submissions from the from business groups argued that there was no need for change to the Sex Discrimination Act.

Businesses already have a wide range of legislative and regulatory obligations to comply with. Positive education campaigns, raising awareness of employees' rights and employers' responsibilities are a more effective means of achieving long term change.67

HREOC supports the extension of the family responsibilities provisions in each of the areas discussed above.

A Family Responsibilities and Carers' Rights Act

As set out above, HREOC heard strong support for, and itself supports, an expansion of the current family responsibilities provisions of the Sex Discrimination Act. In HREOC's view, this would be most appropriately implemented through a separate specialised piece of legislation.68 This paper identifies the key points for inclusion in the proposed new law and full details should be developed following broad consultation.

Family responsibilities discrimination is distinct from sex discrimination and warrants its own legislative framework and policy support. Further, to include expanded family responsibilities protection in the Sex Discrimination Act may serve to entrench the idea that caring is women's work. Despite the fact that the Sex Discrimination Act applies to both men and women, there is, as one submission pointed out, an "impression that it is primarily an Act about affirmative action for women and that family responsibilities are a "women's issue"'.69 Another submission suggested that the use of the word "sex" in the Act may give rise to the perception that it is only available to women and only relates to sex discrimination.70

A separate Family Responsibilities and Carers' Rights Act would expressly encompass both men and women with family and carer responsibilities. Such a specialised Act would assist in overcoming the stereotypes mentioned above, and be more accessible to men. These objectives would not be achieved if the family responsibilities provisions were extended within the Sex Discrimination Act.

As Sara Charlesworth argued, broadening the family responsibilities provisions within a framework that better assists men would have an important influence on equality between men and women within the workplace and the home as it would challenge the notion of the "ideal worker" as one unencumbered by family and carer responsibilities.71 Broader provisions would not only mean greater access to redress for family responsibilities discrimination by men, it would also influence what both employees and employers consider to be discrimination and potentially have a flow on effect to gendered divisions of unpaid work.72

The constitutional basis and the objectives of this new Act could be drawn from CEDAW, ILO 156, the Convention on the Rights of the Child and potentially, the Convention on the Rights of Persons with Disabilities.73

The new Act would define both direct and indirect discrimination on the ground of family and carer responsibilities, and proscribe such discrimination in all areas of employment. The Act would also include a right for workers to request flexible work arrangements due to family or carer responsibilities and to have the request reasonably considered by employers. This is discussed below. The Act would require HREOC to conduct relevant educative, research and policy work, and extend amicus curiae and intervention functions to a Commissioner.

Towards substantive equality: A positive duty to accommodate

Submissions argued for the inclusion in the Sex Discrimination Act of positive duties upon employers to accommodate family and carer responsibilities, similar to those recommended by the Productivity Commission in the context of the Disability Discrimination Act.74

For example, K Lee Adams submitted:

As scholars have noted, anti-discrimination legislation has never been sufficient in itself to address the social and cultural problems presented by the work-life interface (Berns, 2002; Thornton, 1990). Perhaps legislation specifically directed at reasonable accommodation-enabling workers with family responsibilities to craft workable employment solutions for their situations-would provide greater scope than anti-discrimination legislation alone, which is unsuited to wide-scale restructure of work relationships.75

Belinda Smith suggested that an "explicit duty of reasonable adjustment" be brought into the Sex Discrimination Act for family and carer responsibilities, arguing that a requirement to accommodate workers with family and carer responsibilities would "provide greater clarity and could have a significant normative effect".76

Further, the ACT Human Rights Office suggested that a positive duty could be imposed on public authorities. The ACT Human Rights Office submitted that the Sex Discrimination Act:

...could be amended to introduce a duty on public authorities to promote gender equality. This would benefit men, particularly by encouraging recognition of the caring role of fathers and their need to combine work and care, as well as women.77

The ACT Human Rights Office stated that the Committee on the Elimination of Discrimination Against Women78 has stressed that governments have a positive duty to act in order to relieve women of some of the burdens of household and child care tasks and to reduce their economic dependence on men.79 The ACT Human Rights Office stated:

The goal must be substantive not merely formal equality, and this requires positive measures to address past discrimination and enduring stereotypes. Crucially, there should be an expectation that caring for children, the aged and infirm, for friends and relatives in times of need, is the responsibility of men and women equally. As long as this responsibility falls primarily to women they are vulnerable to being discriminated against at work, and constrained in their employment choices and opportunities.80

A right to request and a duty to consider flexible work arrangements

One specific form of positive accommodation is the provision of a right for workers with family and carer responsibilities to request flexible work arrangements with a corresponding duty on employers to reasonably consider these requests.

During the Striking the Balance project the Australian Industrial Relations Commission (AIRC) released its decision in the Family Provisions test case (August 2005).81 This decision provided a range of employees covered by federal awards with a range of family-friendly entitlements, the most significant of which was a formal right to request a number of parental leave provisions - namely an additional 52 weeks of unpaid parental leave, an extension of the period of simultaneous unpaid parental leave to eight weeks and to work part time on return from parental leave until a child reaches school age. The decision provides that the employer may refuse such a request "on reasonable grounds related to the effect on the workplace or the employer's business".

The decision extended these entitlements to the five federal awards that were the subject of the case. Test case clauses can only be included in federal awards by a party applying for, and the AIRC subsequently granting a variation to include the clauses in an award. Between 8 August 2005 and 27 March 2006, when the Workplace Relations Amendment (WorkChoices) Act 2005, came into operation (which limited awards being varied to include such provisions) a total of 428 of approximately 2200 federal awards had been varied.82

These provisions (with various modifications) have also flowed on to some groups of employees covered by State legislation or awards (that is, mainly State Government employees) and in two States to some State award employees who have now moved into the national system. This has occurred as a result of both State Governments introducing new legislation and State industrial tribunals issuing a general order for variation of awards following union applications. While these provisions do provide a range of employees with a right to request, the coverage of employees still remains very limited.

HREOC received strong support for such a legislated right as a useful vehicle for achieving systemic change, both in submissions and from some consultation participants.83

For example, the New South Wales Equal Employment Opportunity Practitioners' Association suggested amending "the Sex Discrimination Act to include a positive obligation on employers to accommodate an employee's request for family friendly workplace practices ... unless the employer can demonstrate that accommodating such a request imposes an unjustifiable hardship".84

Similarly, Job Watch Inc suggested that

Where employees returning to work from parental leave request such entitlements [flexible work arrangements], it should be an express ground of discrimination under the SDA for the employer to fail to reasonably accommodate the request. The focus of the inquiry should not be whether the employer had sound business reasons to refuse the request or how reasonable it is to make alternative arrangements ... Although business needs are to be considered also, employers must be challenged to be flexible in their thinking about workplace arrangements and be prepared to test any proposal to see whether it is workable.85

Other submissions argued that any such legislation would need to be broad in scope and not limited to accommodating family responsibilities involving young children. The Disability Council of NSW recommended that the proposed legislation should be modelled on that of the United Kingdom, and be extended to include disability-related flexibility needs.86 This is also a theme which has been highlighted in HREOC's National Inquiry into Employment and Disability. The kind of flexibilities which assist workers with family care responsibilities are often the same as, or very similar to, the kinds of flexibilities which may be required by people with disability in the workplace.

Not all submissions expressed support for a right for workers with family and carer responsibilities to request flexible work arrangements. Some submissions expressed concern about its effects on employers and its effect on employers approach to hiring women:

Not all jobs will be suited to part time work and there must be scope for employers to run their business in the way that they see fit. This sort of proposal could lead to women of child-bearing age being seen as less desirable employees than others.87

Similarly, the Australian Industry Group argued that imposing "generalised rules" for implementing paid work and family balance are counterproductive, with the potential to generate negative attitudes among employers toward the broader work/family agenda, in addition to potential discrimination against women of child-bearing age who might be perceived as too costly to employ.88

Some employer representatives supported an employee's right to request flexible work arrangements in principle but were opposed to legislation that might penalise employers for not being able to legitimately meet these requests:

The AIRC decision in the Family Provisions Case goes far enough in ensuring there is an equal balance between an employee's entitlement to balance work and family arrangements, there is not a need for further measures or entitlements to be introduced into workplace legislation.89

Consultations with employer representatives provided mixed responses. Two participants said that their companies already respond to requests for part time work within a reasonableness criterion, with one participant noting that a requirement can make arrangements more difficult to accommodate: "Why create another layer of legislation, a new layer of difficulty?".90

Other employers were less troubled by the prospect, particularly if the right was a right to request only, with a duty on the employer to reasonably consider it with conditions for refusal along the lines of those used in the United Kingdom legislation.91 One participant highlighted the need for any such legislation to be accompanied by a supporting set of guidelines, along with consultation with business groups to avoid resistance and resentment.92 A proper implementation strategy may also alleviate the concerns expressed in consultations by small business about their capacity to meet obligations under a right to request model.93

HREOC supports the introduction of a legislated right for workers with family and carer responsibilities to request flexible work arrangements with a corresponding duty on employers to reasonably consider these requests.94 This means that employers must be able to demonstrate that they properly investigated whether such a request could be accommodated and reached a decision fairly on the merits. HREOC considers that this right should be included in the Family Responsibilities and Carers' Rights Act. The right encompasses all forms of carer responsibilities and would be available to men and women workers of all ages.

HREOC is of the view that such a right represents an appropriate balance between the legitimate business considerations of employers (as highlighted in the employer submissions discussed above) and the need for greater support for those employees with family and carer responsibilities. Such a framework imposes no obligations on any employer who is unable to meet a request due to genuine operational considerations, beyond the duty to give reasonable consideration to the request.

In so far as this proposed legislative right applies to women returning to work from maternity leave, it does not represent a significant departure from the law. A series of federal cases have considered the extent to which the Sex Discrimination Act obliges employers to meet requests made by female employees for flexible work arrangements following their return to work from maternity leave. The cases cannot be said to establish a right to flexible work arrangements as such, but they do send a strong message about the need for employers to reasonably consider such requests.95 Significant factors leading to the employee's success were a failure on the employer's part to take time to properly understand the reasons for the employee's request, a failure to properly investigate whether the request could be accommodated and a failure by the employer to reach its decision fairly on the merits. Accordingly, the proposed legislative right to request flexible work arrangements would provide employers with certainty with respect to these obligations.

The proposed legislative right would also require employers to reasonably consider requests made by men with family and carer responsibilities. This would provide men with much improved access to flexible work arrangements to assist them in balancing their paid work and care responsibilities. Improving men's access to, and use of, flexible work arrangements would have an important and significant influence on equality between men and women both within the workplace and within the home. Such a right would be an important vehicle for overcoming the long standing stereotypes discussed in this paper and promoting systemic change. HREOC considers this proposed legislative change to be an important and necessary step toward creating the expectation that "caring for children, the aged and infirm, for friends and relatives in times of need, is the responsibility of men and women equally".96

Whilst HREOC acknowledges that this proposed legislative change imposes some additional obligations on employers, these obligations are balanced by considerations of reasonableness.

HREOC recommends that the introduction of this proposed legislative right be accompanied by a comprehensive education campaign to both assist in alleviating employer concerns and to encourage men and women of all ages to utilise this new right.97

3.5 Conclusion

The Sex Discrimination Act has been used to address the inequality that exists between women and men, particularly in the workplace, for over two decades. It was introduced into Parliament primarily to implement the objectives of CEDAW.

It is clear from the submissions and consultations that the Sex Discrimination Act does not fit all the circumstances around the current debate on balancing paid work and care. This should not come as a surprise in light of the passage of time since its introduction. In this time, significant changes have taken place, including: large numbers of women entering the workforce; a greater understanding of the impact of Australia's ageing population; a changing industrial environment; and a rising expectation that men and women should share their paid work and care responsibilities. These social changes are yet to be fully reflected in the law.

It is clear that there is an immediate need for law reform to both increase the protections available to workers with family and carer responsibilities and to promote systemic change. In HREOC's view addressing these dual objectives requires:

• an extension of the family responsibilities provisions to make unlawful both direct and indirect family responsibilities discrimination in all aspects of employment;

• the introduction of a right for men and women workers with family and carer responsibilities to request flexible work arrangements;

• protection for individuals with a diverse range of caring responsibilities; and

• the inclusion of these new rights and responsibilities in a separate specialised piece of legislation that is viewed as accessible to both men and women.

Extending the family responsibilities provisions within the Sex Discrimination Act is not enough. This is because it fails to confront the entrenched stereotype that caring is the responsibility of women in our society. It is essential that extending protections for workers with family and carer responsibilities occur alongside measures that promote systemic change by ensuring men's access to, and utilisation of, these protections. These dual objectives would be best achieved by including the improved protections in a new Family Responsibilities and Carers' Rights Act to be introduced by the Australian Government. A specialised piece of legislation would clearly encompass both men and women workers with family and carer responsibilities. The introduction of this legislation should be accompanied by a comprehensive education campaign.

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Footnotes

July 31, 2009

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