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WORK AND FAMILY TEST CASE: Submission

Legal

In the Australian Industrial Relations Commission

Matter No. C2003/4198, 4199, 4203, 4301, 4302, 5142, 5143, 5144, 5166, 5167, 5168, 5268, 5272, 5326, 5787

WORK AND FAMILY TEST CASE

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ON PROCEDURAL MATTERS

Index to Submission

Introduction

  1. The Human Rights and Equal Opportunity Commission (HREOC) was granted leave to intervene in these proceedings on 26 September 2003.
  2. HREOC makes no submission as to which awards should be considered in the current proceedings or whether any particular awards are suitable for test case consideration. Nor does HREOC seek to make submissions on the specific proposals made in the ACTU submission on procedural matters of 24 October 2003.
  3. However HREOC submits that the general availability of part-time work and flexible work arrangements, particularly in male-dominated industries, is a matter of important public interest for the reasons set out below. In determining the procedural matters, the President is required, under section 107(2)(a) of the Workplace Relations Act 1996 (Cth) (WRA), to assess whether the subject matter of each proceeding is of such importance that, in the public interest, it should be dealt with by a Full Bench. Public interest considerations are also relevant in considering whether further proceedings are necessary or desirable (section 111(1)(g)(iii) of the WRA).

Addressing indirect sex discrimination

  1. Failure to provide flexible work arrangements and part-time work may constitute indirect sex discrimination under the Sex Discrimination Act 1984 (Cth) (SDA). This is because work requirements that prevent people with family responsibilities from participating in paid work will have a disproportionate effect on women as women tend to bear the majority of the family responsibilities in Australian society.1
  2. Such discrimination operates as a barrier to women's full access to the benefits of workforce participation and impedes the redress of historical workforce gender imbalances. Flexible work arrangements and part-time work can assist in eliminating this discrimination and improve women's ability to enter and move within the workforce.

Helping parents to balance work and family responsibilities

  1. The ability to argue for access to flexible work arrangements and part-time work on the basis of indirect sex discrimination and /or family responsibilities under the SDA assists in establishing these work arrangements as a right for women.2 However, any such right is recognised only in its breach in individual complaints. There is also the broader issue of establishing access to such work arrangements as a right for all parents (men as well as women) which may be complicated under the provisions of the SDA.3
  2. It is important in the public interest that both men and women are able to access flexible work arrangements and part-time work in order to facilitate equal sharing of their parenting responsibilities. Greater sharing of parental responsibilities will assist in the achievement of equality between men and women. It will also assist fathers to play a greater role in the day-to-day care of their children.
  3. Inserting provisions on flexible work arrangements and part-time work into awards is one means of extending these rights to parents.

Disability discrimination

  1. The public interest also requires a consideration of the issues of carers of people with disabilities. Inflexible working conditions may amount to indirect discrimination against carers if the conditions impact on or disadvantage greater numbers of carers of people with disabilities relative to people who are not carers, and are unreasonable in the circumstances, under the Disability Discrimination Act 1992 (Cth).

Meeting Australia's international obligations

  1. As a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Labour Organisation's Convention Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (Family Responsibilities Convention), Australia has certain obligations regarding the employment conditions of women and people with family responsibilities.
  2. The CEDAW is based on the principle of equality of men and women, involving "… the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries". Article 11 of the CEDAW states that "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights …"
  3. One of the purposes of the Family Responsibilities Convention is to recognise, "… the need to create effective equality of opportunity and treatment as between men and women workers with family responsibilities and between such workers and other workers". Article 4 of the Family Responsibilities Convention provides that measures should be taken "… to enable workers with family responsibilities to exercise their right to free choice of employment; and to take account of their needs in terms and conditions of employment and in social security." Section 93A of the WRA provides that the AIRC must take account of the principles embodied in the Family Responsibilities Convention.
  4. Ensuring access to flexible work arrangements and part-time work would be one means of putting into effect these international obligations.

Conclusion

  1. Flexible work arrangements and part-time work should in principle be available to all workers and across all sectors. In particular, they should be accessible in traditionally male dominated industries and in order to ensure women and carers of people with disabilities have access to all areas of paid work without discrimination.
  2. HREOC considers that these issues of potential discrimination raise important matters concerning the public interest.

 

Craig Lenehan

Solicitor for the Human Rights and Equal Opportunity Commission

18 November 2003

Endnotes

  1. See generally Hickie v Hunt and Hunt (1998) EOC 92-910 and Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) EOC 93-227.
  2. See Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31; (2002) EOC 93-194; Escobar v Rainbow Printing Pty Limited (No 2) [2002] FMCA 122 ; (2002) EOC 93-229; Mayer v A.N.S.T.O [2003] FMCA 209; (2003) EOC 93-285; Evans v National Crime Authority [2003] FMCA 375.
  3. The SDA gets its widest potential application by virtue of section 9(10) of the SDA, which does not apply to discrimination against men.

Last updated 15 November 2005.