ࡱ> nlo` Pbjbjss .z@5%2%2%2%8j%t%,h1&&"<&R&R&-'-'-'0000000$ 3ht5* 1^+-'-'^+^+ 1R&R&"1F,F,F,^+R&R&0F,^+0F,F,#/o/R& & WF2%t+;/0$810h1C/,5+5o/5o/T-'=(F,()-'-'-' 1 10,-'-'-'h1^+^+^+^+.."d@jd@ Submission Same-Sex Inquiry Human Rights Unit Human Rights and Equal Opportunity Commission Anna Chapman [Details removed] Senior Lecturer Law School University of Melbourne Member of the Centre for Employment and Labour Relations Law, University of Melbourne My submission is structured as follows. First, I identify the scope of my submission by reference to the Terms of Reference of the inquiry. Next, I comment on some important conceptual issues that I believe the inquiry ought to take into account in its analysis, and particularly in formulating its recommendations. Following this I turn to examine substantive legal rules: federal anti-discrimination legislation; and rules under the Workplace Relations Act 1996 (Cth) relating to unpaid parental leave, personal leave, and rules prohibiting discrimination in termination of employment, and the content of awards and workplace agreements. Some of the text of this submission draws on my published research and where this has occurred I have footnoted the material, for the inquirys information. Elsewhere I have footnoted other academic research that the inquiry may wish to follow up on particular matters. Scope of Submission In this submission I address discrimination against people in same-sex relationships that arises in relation to work-related legal entitlements and benefits under heading 7.1 in the HREOC Discussion Paper (p 14). I do not address other issues identified under heading 7 of the Discussion Paper, such as social security, tax, superannuation and workers compensation. My submission contains legal analysis of the ways in which Commonwealth laws discriminate against people in same-sex relationships. The submission examines Commonwealth laws alone, and not State and Territory laws. It fits within the first stated primary purpose of the inquiry, to (a) conduct an audit of Commonwealth laws (Discussion Paper, p 4). Some Conceptual Issues There are three conceptual matters that I comment on. First, the Terms of Reference for the inquiry use the concept of a couple, rather than the broader concept of relationship. Although the Discussion Paper does not explore what is meant by a couple, this choice of wording appears to privilege same sex relationships that comprise two adults in some form of exclusive or monogamous arrangement. In my opinion the inquiry should not limit itself to this partial view of same sex relationships, but should be open to all the diverse ways in which people of the same sex form relationships, and have and care for children. A model based on a two adult nuclear family-type couple with or without children is deficient in that it provides a partial view only of relationships within the same sex attracted communities in Australia. The second conceptual matter that I raise is the issue of intersectionality. This is the idea that we all experience the world through an intersection of various identities, and often several outsider identities. So people are not only same sex attracted (or opposite sex attracted, or both), they also experience the world through the oppression of gender, race, (dis)ability and age, to name a few. The Discussion Paper appears to not acknowledge this important dimension, and in my opinion any reform proposals ought to be informed by an understanding of this issue. The third conceptual matter that I raise is that the Terms of Reference and the broader Discussion Paper, appear to draw on a concept of formal equality. For example, Term of Reference 1(b), 2(b) and 3(b) all refer to equality of opportunity and treatment. Formal equality, meaning sameness of treatment, is a relatively limited approach to the issue of equality. It does not impose minimum standards; it merely requires consistency in treatment. Substantive equality, on the other hand, looks to the outcomes of policies and laws and asks whether equality is achieved, or moved towards, in fact. In my opinion the Commission ought not to limit itself to a concept of formal equality. Federal Anti-Discrimination Law Unlike State anti-discrimination jurisdictions, sexual preference is not a ground of unlawful discrimination at the federal level. Its appearance in the Regulations of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) merely enables HREOC to inquire into and attempt to resolve a discrimination matter in employment or occupation by conciliation, and if not successful to prepare a report (with recommendations) for the Commonwealth Attorney-General, for tabling in Parliament. This lack of a legally enforceable remedy for sexual preference discrimination in federal anti-discrimination law is clearly itself an issue of discrimination. In addition, and in contrast to most State jurisdictions, other potentially relevant grounds in federal anti-discrimination law exclude same sex relationships. Notably, the ground of marital status is drafted in a way that explicitly excludes same sex relationships and other relationships that do not conform to a heterosexual nuclear couple model whilst family responsibilities is also defined around a heterosexual family, although in a slightly broader form than the marital status ground. Family responsibilities is defined to mean the responsibility to care for or support a dependent child of the employee or any other immediate family member. The category of immediate family member is defined by reference to heterosexual family units, albeit in a form slightly broader than the nuclear family. The heterosexed character of immediate family is articulated through the criteria of spouse, de facto spouse and child. [S]pouse and de facto spouse are defined in ways that are clearly heterosexed. [C]hild is defined to include an adopted child, a step-child or an ex-nuptial child. These meanings of child make sense in a heterosexual context of marriage and step-families; they make only limited sense in a same sex context. Notably, adoption is not an option for most families headed by same sex adults, as in most State jurisdictions in Australia female partners of birth mothers are not legally able to adopt a child of the relationship. In contrast to the category of immediate family, the criteria of dependent child of the employee appears to have potentially broader application. [D]ependant child is defined to be a child who is wholly or substantially dependent on the employee. This might cover the child of a lesbian non-birth mother. Two matters however militate against such an interpretation. First, family responsibilities is defined as being a dependent child or any other immediate family member, suggesting that the dependent child is intended by Parliament to be himself or herself an immediate family member. Secondly, as discussed above, the concept of child is itself defined by reference to concepts that make sense in a heterosexual context. Ultimately though, this is all supposition, as these issues have not been tested in adjudication. It can be concluded nonetheless, that there are serious questions about the extent to which the family responsibilities ground in the Sex Discrimination Act operates to protect the arrangements to care for children in same sex parented families. Federal Legislative Right to Unpaid Parental Leave The Workplace Relations Act 1996 (Cth) contains a legislative set of rights to unpaid parental and adoption leave. The entitlements were originally enacted in 1993, and have continued in largely the same terms with the Work Choices amendments made in late 2005 to the Act. Prior to being in legislative form, unpaid parental leave appeared through award test cases and became standard award clauses. Parental leave is now positioned as part of the Australian Fair Pay and Conditions Standard. Employees who have at least 12 months continuous service, and longer term casual employees, are entitled to take up to a maximum of 52 weeks of unpaid maternity, paternity and related authorized leave in order to be the primary caregiver for a baby. Unpaid adoption leave is similarly available in relation to the placement of an eligible child. Only one week of concurrent parental leave may be taken by the two parents following birth, whilst three weeks of adoption leave may be taken concurrently. Employees who take parental leave or adoption leave are entitled in most cases to return to the position they held immediately before commencing the leave. However, if their former position no longer exists, and the employee is qualified and able to work for the employer in another position, then she or he is entitled to return to that position. These rules anticipate and reinforce a two parent heterosexual relationship. Parental leave is comprised of maternity leave and paternity leave. Both these concepts are gendered and heterosexed. Maternity leave is stated to be for an employee in respect of her pregnancy, or the birth of her child, and paternity leave is specified as being an entitlement of a male employee in respect of the birth of a child of his spouse. Adoption leave similarly assumes an employee and his or her spouse. In these provisions the concept of spouse is defined to include a former spouse, and a current and former de facto spouse, which is in turn defined to be a person of the opposite sex to the employee who lives with the employee on a genuine domestic basis although not legally married. These definitions clearly exclude same sex parents. Federal Legislative Right to Personal Leave The Workplace Relations Act 1996 (Cth), post Work Choices, now contains a set of entitlements to personal leave. The standard entitlement for a full-time employee is 10 days per year of paid personal/carers leave, and when that is exhausted, 2 days of unpaid carers leave for each occasion the employee requires it (provided notice and documentation requirements are fulfilled). Personal/carers leave is defined as paid sick leave taken by an employee because of his or her own illness or injury, and paid or unpaid carers leave taken by an employee to provide care or support to a member of the employees immediate family, or a member of the employees household. Employees also have an entitlement to compassionate leave (of 2 days for each occasion), which is likewise defined by these concepts of immediate family and member of the employees household. Prior to being legislative rights, entitlements to family/carers leave and bereavement leave were formulated through award test cases. The concept of immediate family is defined in an explicitly heterosexed manner around the definitions of spouse, de facto spouse (defined explicitly to be a person of the opposite sex) and child. It is hard to imagine that any arrangements to care for children in same sex relationships (other than caring by a biological parent) will be covered by the category of immediate family. The second concept - member of the employees household - is not defined. It has its origins in an award test case of 1994/95 on family and carers leave, and was consciously formulated in that case to include a broader range of caring relationships than is captured under immediate family. Same sex relationships were explicitly discussed in that context. The member of the employees household concept clearly covers a wider range of same sex child care arrangements, but notably only where the child is a member of the employees household. In contrast, the potential for the requirement of a residence-type link is not a component of the immediate family concept. In this way the Workplace Relations Act personal leave provisions offer a lesser entitlement in relation to many same sex families compared to heterosexual, nuclear, family structures. Not only does it offer a more constrained legal entitlement, it sends a message that same sex families are merely households, with the concept of immediately family being reserved for heterosexual nuclear relationships. Non-Discrimination Principles in the federal Workplace Relations Act The Workplace Relations Act 1996 (Cth) contains a number of provisions requiring non-discrimination. First, an employer must not terminate an employees employment on a listed ground, including, sexual preference, marital status and family responsibilities. In addition, key institutions under the Workplace Relations Act, namely the Australian Industrial Relations Commission, the Australian Fair Pay Commission and the Office of the Employment Advocate, are directed to take into account the need to prevent and eliminate discrimination on a range of grounds including sexual preference, marital status and family responsibilities. Awards also must not discriminate on the grounds of sexual preference, marital status and family responsibilities. These grounds are not defined in the Workplace Relations Act, and it seems likely that they would be interpreted according to the meaning given to them under the Sex Discrimination Act 1984 (Cth). Indeed, the Australian Industrial Relations Commission and the Australian Fair Pay Commission are explicitly directed to take into account the principles of the Sex Discrimination Act. As discussed above, the concepts of marital status and family responsibilities in the Sex Discrimination Act explicitly exclude same sex relationships, and that exclusionary meaning is likely to be replicated under the Workplace Relations Act provisions. Anna Chapman 15 June 2006  Literature on the diverse ways in which children are raised in queer communities is summarised in A Chapman, Challenging the Constitution of the (White and Straight) Family in Work and Family Scholarship (2005) 23(1) Law in Context 65 at 72-73.  See further, R Graycar and J Morgan, The Hidden Gender of Law (2002) p 48-55; HREOC, Gender and Race Intersectionality, National Consultations: Racism and Civil Society, Issues Paper (2001); A Chapman, Sexuality and Workplace Oppression (1995) 20 Melbourne University Law Review 311 at 318-323.  See further, Graycar and Morgan, above n 2 at chap 3; S Fredman, Discrimination Law (2002) chap 1.  Human Rights and Equal Opportunity Regulations 1989 (Cth), reg 4(a)(ix).  Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 31(b). See, ie, Griffin v The Catholic Education Office  HYPERLINK "http://library2.cch.com.au.ezproxy.lib.unimelb.edu.au/dynaweb/aeop/aeopcase/@ebt-link;pf=;cs=default;ts=default;pt=46153?target=IDMATCH(io442449.sl12192040);window=specified;showtoc=true;book=aeopcase" \t "_top" (1998) EOC 92-928.  Sex Discrimination Act 1984 (Cth) (SDA) s 4(1) definitions of marital status and de facto spouse.  SDA s 4A, s 4(1).  SDA s 4A. This material on the marital status ground and the family responsibilities ground under the Sex Discrimination Act is drawn from A Chapman, Challenging the Constitution of the (White and Straight) Family in Work and Family Scholarship (2005) 23(1) Law in Context 65 at 79-80.  SDA s 4A, s 4(1).  Although spouse is not defined in the Sex Discrimination Act, it now seems clear that it cannot include a same sex marriage solemnized in a foreign country, since the enactment of the Marriage Amendment Act 2004 (Cth) defined marriage as the union of a man and a woman (s 5(1) Marriage Act 1961 (Cth)). [D]e facto spouse is defined by reference to a person of the opposite sex (SDA s 4(1)).  SDA s 4A(2).  Victorian Law Reform Commission, Assisted Reproduction and Adoption: Should the Current Eligibility Criteria be Changed? (2003) paragraphs 5.59-5.64.  SDA s 4A(2).  SDA s 4A(1), emphasis added.  SDA s 4A(2).  This material is drawn from A Chapman, Workers, Pregnancy and Babies, and the Constitution of Work and Family through Legal Regulation unpublished manuscript (2006).  Workplace Relations Act 1996 (Cth) (WR Act) Part 7 (Australian Fair Pay and Conditions Standard), Division 6.  The casual employees covered are those who have been engaged on a regular and systematic basis for at least 12 months, and who would have a reasonable expectation of ongoing employment with that employer, but for the birth or adoption: WR Act s 262, s 263 (definition of eligible casual employee); s 264. And see s 282(2)(b). Prior to Work Choices, the statutory right excluded all casual and seasonal employees.  WR Act s 266(3), s 277, s 282(1), s 283(3). Notably, Work Choices introduced a new legislative rule permitting employees to commence maternity leave from 6 weeks before their due date.  WR Act s 300, s 301. [E]ligible child is defined in terms of being a child under the age of 5 years, who has not lived with the employee previously, and who is not a child or step-child of the employee or his or her spouse: s 298.  WR Act s 284, s 285.  WR Act s 302.  WR Act s 280, s 296, s 314.  WR Act s 265(1).  WR Act s 282(1).  WR Act s 301(3), s 302, s 303.  WR Act s 263. Note that Work Choices reworded these provisions, although notably not altering their exclusionary character.  Although spouse is only inclusively defined, it seems clear that it would not include same sex marriages. See fn 10 above.  WR Act Part 7 (Australian Fair Pay and Conditions Standard), Division 5.  WR Act s 246(2).  WR Act s 250.  WR Act s 244. And see s 250.  WR Act s 257. This includes the concept of bereavement leave.  See A Chapman, Challenging the Constitution of the (White and Straight) Family in Work and Family Scholarship (2005) 23(1) Law in Context 65; M Trabsky, Deconstructing the Heteronormative Worker or Queering a Jurisprudence of Labour (2005) 23(1) Law in Context 202.  WR Act s 240 definitions of immediate family, spouse, de facto spouse and child. See discussion above in relation to the Sex Discrimination Act concept of child. The concept used in the WR Act is very similar.  Family Leave Test Case November 1994 (1994) 57 IR 121; Family Leave Test Case, Supplementary Decision (1995) AILR 3-060. See A Chapman, Challenging the Constitution of the (White and Straight) Family in Work and Family Scholarship (2005) 23(1) Law in Context 65.  On the pre-Work Choices form of these rules, see A Chapman, Work/Family, Australian Labour Law, and the Normative Worker, in J Conaghan and K Rittich (eds), Labour Law, Work, and Family (2005), chap 4.  WR Act s 659(2)(f).  WR Act s 104, s 105, (and see s 106); s 222; s 151(3). See also s 3(m).  WR Act s 568(2)(e).  WR Act s 105; s 222(1)(c).     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