ࡱ> ` lrbjbj <a%r r r j L( ( ( < `/`/`/8/4/< L0(0"0000>$181 9E;E;E;E/jE|H|bL$NhQQrL( 60066L( ( 00LZ<Z<Z<6`( 0( 09EZ<69EZ<Z<A>( ( C00 S01-`/@8B-C L0LB:Q:Q, CQ( C D1r2Z<34ND1D1D1LL;^D1D1D1L6666< < < $%`/< < < `/< < < ( ( ( ( ( (   Ms Pru Goward Sex Discrimination Commissioner Human Rights and Equal Opportunity Commission GPO Box 5218 SYDNEY NSW 2001 By e-mail: familyresponsibilities@humanrights.gov.au Our ref:LS/05/756 Dear Ms Goward Striking the Balance: women, men, work and family Discussion Paper 2005 I refer to the above matter. Thank you for the opportunity to comment on Striking the Balance: women, men, work and family (the Paper). The Anti-Discrimination Board (ADB) was established in 1977 to administer the Anti-Discrimination Act 1977 (NSW) (ADA). The ADB s functions include: investigating and conciliating complaints of discrimination, harassment and vilification; informing and educating the people of NSW, employers and service providers about their rights and responsibilities under anti-discrimination law; and recommending legislative and policy reform to maximise protection human rights and effectiveness of anti-discrimination law. In undertaking the first of these functions, the Boards role is to investigate, and attempt to conciliate, complaints made under the ADA. Where complaints cannot be conciliated (and in some other circumstances) complaints may be referred to the Administrative Decisions Tribunal (ADT) for determination. On 31 May 2000 the NSW Parliament passed the Anti-Discrimination (Carers Responsibilities) Act 2000 (NSW). The amendment makes it unlawful for an employer to discriminate, directly or indirectly, against an employee or an applicant for employment on the ground of the employees or applicants responsibilities as a carer. The amendment commenced on 1 March 2001. When introducing the amendment the Attorney General, Hon J W Shaw, stated: The amendment recognises the changing structure of work and family life, and the growing number of women and men in the work force who are the primary carers of children, adults with disabilities, or other family members in need of care and support. It is clear that many workers do have responsibilities for the care and support of dependent children or other family members. As noted in the Paper, there is ample material regarding the proportion of people in the work force with responsibility for dependent children. But, as both the Paper and the Attorney Generals second reading speech notes, the care of children is only one aspect of caring and responsibilities as a carer. It is clear that many families do not fit the traditional family responsibilities profile - many workers of both sexes will have a caring responsibility for another person such as a partner, child, parent, sibling or other relative. The definition in the ADA of what constitutes a persons responsibilities as a carer is broad and encompasses a range of domestic relationships. Section 49S, which defines the type of relationships covered, is attached Annexure A. Broadly, responsibilities as a carer are defined as a persons responsibility to care for or support a dependent child or another immediate family member who is in need of care and support. Generally, the definition requires that a child be wholly or substantially dependent on the person or in need of care and support. The definition picks up anyone with responsibility for a child in a comparable role to a parent and includes a step-parent or a person with parental responsibilities for a child which have been granted under various State and Commonwealth laws. Immediate family members are also defined and include a spouse or former spouse of the employee, grandchildren, parents and step-parents of the employee or their spouse or former spouse and brothers and sisters of the employee or of their spouse or former spouse. In the amendment spouse has the same meaning as in the recently amended Property Relationships Act 1984 (NSW), previously the De Facto Relationships Act 1984 (NSW), and includes same-sex partners. The ground only applies in the area of employment. Work and family responsibilities The notion of combining work and carers responsibilities is not a new idea. The experience of the Board is that some employees and enterprises have worked out ways of balancing the needs of the business and the employees successfully. There are also many enterprises that have not met this challenge. Those employers have yet to take their employees carers responsibilities seriously and examine their own employment practices and policies. The Attorney General emphasised this aspect when introducing the legislation: The amendment will impose an obligation on employers to accommodate employees caring responsibilities, ensuring that employers pro-actively consider whether existing or new workplace policies have a discriminatory impact on employees with caring responsibilities. Cases law indicates that with respect to carers (or family) responsibilities discrimination complaints are often lodged regarding requirements and conditions in the workplace. While it is apparent that direct discrimination on the ground of a persons caring responsibilities still occurs, for example the woman who is not hired because she has children, or the man who is not sent to training because every morning he must drop off his brother who has a disability, very often complaints on the ground of carers responsibilities are made on the basis of indirect discrimination. These complaints are related, for example, to the way in which work is organised or the operational requirements of a workplace such as shift times, start and finish times and requirements to work full time. Where a complaint of indirect discrimination is brought, a complainant must show that the requirement is not reasonable in the circumstances. In addition, an employer may raise a defence if an employee is unable to carry out the inherent requirements of their position because of their carers responsibilities and the accommodation of such responsibilities would cause an employer unjustifiable hardship. Complaints under the ADA on the ground of responsibilities as a carer Annexure B sets out the statistics relating to enquiries and complaints made to the Board about discrimination on the ground of carers responsibilities. The provisions relating to carers responsibilities have been in operation in the ADA for only four full years. It would be unwise to draw too many conclusions based on the statistics available to date. However, the statistics relating to enquiries and complaints dealt with by the Board (see below) appear to indicate that after the initial interest in the new ground, enquiries have dropped off.  Similarly, the Board has dealt with fewer complaints of unlawful discrimination on the ground of carers responsibilities than in previous years. The greatest number of complaints received on the ground of carers responsibilities was in the year 2002-2003, the second full year of operation of the ground. There could be a number of explanations for this including ones relating to the ways in which the Board now counts complaints. Another reason may be a growing awareness among employers of their obligations to accommodate the carers responsibilities of their employees. Anecdotal evidence suggests another possible explanation that the introduction of the ground has simply failed to deliver for many people what they expected it would. This is consistent with a criticism often levied at the ADA and similar anti-discrimination legislation that it is a shield against unlawful behaviour not a sword which can be used to effect real change in the community. This is borne out by the outcome in the few decided cases under the carers responsibilities provisions in the ADA, in particular, the decisions in Gardiner and Reddy. In both, it was clear that the provision imposed no greater obligation on the employer than to meaningfully consider the circumstances and work-related requests of the employees in question. No positive obligation was found on the part of the employer to accommodate the carers responsibilities of either woman, although the outcome for Ms Reddy was happier than for Ms Gardiner, due to the failure of Ms Reddys employer to give any consideration at all to her requests for part-time work. Indeed, this is the most common factual circumstance in the carers responsibilities complaints dealt with by the Board a desire by an employee (usually but not always female) to return to the workplace on a part-time basis, generally following a period of parental leave. In August 2005 the Australian Industrial Relations Commission dealt specifically with the issue when it handed down its decision in the Family Provisions Case 2005. In its decision the AIRC rejected the argument by the ACTU that there should be a positive obligation on employers to accommodate such requests. In its decision, the AIRC said (at 254): We believe that the ACTU claim, based as it is upon a right to return to work on a part-time basis, is impractical and would impose costs and constraints on employers which could not be justified. Many businesses, particularly small and medium-size businesses, would be unable to provide part-time work and it would be unjust to require them to do so. We accept the employers submission that employers should not be required to provide part-time work regardless of the circumstances of the enterprise. On the other hand there are good reasons why the Commission should take some steps to encourage employers to provide part-time work for parents. Research has consistently found a strong preference for part-time work among women with dependent children and on the evidence in this case it is undeniable that many women take up part-time employment to balance their work and caring responsibilities. Both full-time and part-time employment rates for women increase steadily as their youngest child grows older. [255] We are satisfied on balance that the provision of family friendly benefits in the workplace is associated with higher rates of maternal employment. By increasing the availability of part-time employment, women in particular will have more opportunities to participate and remain in paid employment while fulfilling their parental responsibilities. It is also possible that increasing part-time employment opportunities might have a positive effect on the fertility rate. As we indicate later, the availability of part-time work for returning parents can be increased in a way which takes into account the circumstances of the employers enterprise and does not require the employer to provide part-time work where such a requirement would be unreasonable in the circumstances. While the AIRC decision is generally a positive one and is likely to have a flow-on effect to Federal awards and agreements, it does no more than reiterate the common law in the wake of the Gardiner and Reddy decisions in NSW that the obligation on employers considering an employees request (for part-time work or an extension of parental leave) is only to meaningfully consider the request. The request may be rejected wherever it appears to the employer reasonable to do so. There is no definition of reasonableness set out in the ADA. However clear factors emerge from the case law as relevant to determining whether or not a condition or requirement is not reasonable having regard to all the circumstances of the case. Relevant cases include Australian Iron & Steel v Banovic (1989) EOC 92-271, Waters &Ors v Public Transport Corporation (1992) EOC 92-390, Styles v Secretary of the Department of Foreign Affairs and Trade & Anor (1989) EOC 92-239, see also Styles v Commonwealth of Australia (1995) EOC 92-706, Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission & Anor (1998) EOC 92-908. Both the Styles and Waters cases, cited in the first Gardiner case in NSW, were described by the Tribunal as helpful for their explication of the meaning of reasonableness. The Tribunal also said at [66]: There was no dispute that the onus is on the applicant to show that the requirement is not reasonable. The obligation to show that a requirement is not reasonable in her or his particular circumstances may not be an easy matter for a complainant to establish. The respondents initial obligation to establish the need for the requirement (to, for example, perform a role full-time) taking into consideration any commercial considerations can be a difficult matter for a complainant to rebut. These NSW cases and others like them in other jurisdictions illustrate the fact that the balance of work with family responsibilities is also an industrial issue. But it is also fundamentally an issue for women. The Boards experience is that it is overwhelmingly women who bear the responsibility for unpaid caring work and who must seek to balance those responsibilities with participation in the paid workforce. Approximately 70 85% of complaints lodged with the Board on the ground of carers responsibilities are made by women. Discrimination in industrial instruments The relationship between industrial and discrimination law is evidenced by the number of complaints the President of the Anti-Discrimination Board receives each year in the area of employment. In the year 2003/2004, 60.4% of the complaints received were in the area of employment. The Industrial Relations Act 1996 (NSW) (the IR Act) which has as one of its objects the prevention and elimination of discrimination in the workplace, formalises the interconnection of industrial and discrimination law, and by a number of its provisions makes clear that human rights are also an integral part of the industrial system. Of particular relevance are the provisions which provide a role for the President of the Anti-Discrimination Board in relation to matters of discrimination before the Industrial Relations Commission (the Commission). The IR Act places a particular onus on the Commission and parties to ensure that industrial instruments do not discriminate in their terms or effects. The Commission has held that the concept of discrimination under the Industrial Relations Act encompasses the grounds of unlawful discrimination prohibited under the ADA but is also broader than the strict tests of direct and indirect discrimination under that Act. In State Wage Case 1999 (1999) 88 IR 363 the Commission stated that: The prevention and elimination of discrimination in the workplace, as contemplated within s.3(f) of the Act, is not confined to those acts or omissions which constitute unlawful discrimination for the purposes of the Anti-Discrimination Act, 1977 (NSW), although the object clearly encompasses unlawful discrimination within the provisions of that Act. In that case the Commission determined to insert into all NSW awards an anti-discrimination clause which expressed an intention to achieve the object of preventing and eliminating discrimination in industrial instruments and the workplace generally. A copy of that clause is at Annexure C. Obligations in relation to non-discrimination are also found in the Workplace Relations Act 1996 (Cth) which has as one of its principle objects respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Australian Industrial Relations Commission (AIRC) also has specific obligations to ensure that the terms of industrial instruments do not discriminate on certain grounds. Like discrimination on other grounds, both sex discrimination and discrimination on the ground of carers responsibilities have the potential to arise in industrial instruments. Award or agreement requirements such as those relating to part-time work, provisions which determine levels of seniority or promotion based on length of service, work restrictions based on sex and organisation of work time in relation to shift rosters may be discriminatory in their implementation. Matters involving discrimination in the workplace may be the subject both of a complaint to the Board or may come before the Commission as an industrial dispute. Compliance with an industrial instrument is not a defence to a complaint of unlawful discrimination under the ADA. A number of NSW industrial awards and agreements contain provisions relating to part time work and flexible work arrangements. For example, an award provision which provides that job share arrangements can be entered into with the agreement of the employer. In the Nambucca Shire Council decision of 26 August 1998 the Commission found that the failure of the council to agree to a job share request by a female employee was unreasonable and could amount to indirect sex discrimination. It is also important to note the NSW and Federal Industrial Relations Commissions approaches to Carers Leave. In general most awards have a clause allowing employees to use sick leave for the purposes of caring for family members. For example, in NSW the Commission determined that a standard carers leave clause should generally be inserted into all awards in the State Personal/Carers Leave Case 1996. That clause provides an entitlement for employees to use current and accrued sick leave entitlements for absences to provide care and support for those covered by the clause because they are ill. These include spouses, defacto spouses, same sex partners, children, parents, grandparents, grandchildren, siblings and other members of the same household as the employee. Summary The issue of balancing paid work with family responsibilities is an important one both for the individuals who often struggle with these competing priorities and for society as a whole. As the Paper notes, women bear the major responsibility for unpaid caring work which continues to limit their participation in the paid workforce. At the same time, it continues to be the case that men bear a disproportionate burden in relation to paid work, which, in turn inhibits their ability to make a real contribution to caring at home. This imbalance is a crucial issue to be addressed at an economic, social and cultural level. The issues raised in the Paper require a concerted effort to raise awareness of and examine alternatives to this imbalance. If you have any questions or wish to discuss these comments please call the Boarda Legal Officer Fiona Kerr on 9268 5572. Yours faithfully Stepan Kerkyasharian AM President ANNEXURE A Anti-Discrimination Act 1977 No 48  49S Meaning of responsibilities as a carer (1) A reference in this Part to a persons responsibilities as a carer is a reference to the persons responsibilities to care for or support: (a)any child or step-child of the person (whether or not under the age of 18 years) who is: (i)wholly or substantially dependent on the person, or (ii)in need of care or support, or (b)any child or adult who is in need of care or support and: (i)of whom the person is guardian, or (ii)for whom the person has parental responsibility under a law of the Commonwealth or this State, or (iii)in relation to whom the person is an authorised carer within the meaning of the  HYPERLINK "http://www.legislation.nsw.gov.au/summarize/inforce/s/1/?xref=RecordType%3DACTTOC%20AND%20Year%3D1998%20AND%20Actno%3D157&nohits=y" \t "main" 鱨վ and Young Persons (Care and Protection) Act 1998, or (c)any immediate family member of the person who is in need of care or support, being one of the following: (i)a spouse or former spouse of the person or of a spouse or former spouse of the person, (ii)a grandchild or step-grandchild of the person or of a spouse or former spouse of the person, (iii)a parent or step-parent of the person or of a spouse or former spouse of the person, (iv)a grandparent or step-grandparent of the person or of a spouse or former spouse of the person, (v)a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person. (2) A reference in this Part to a persons responsibilities is a reference to responsibilities: (a)that the person has, or (b)that the person is thought to have (whether or not the person in fact has the responsibilities), or (c)that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the responsibilities), or (d)that the person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the responsibilities). (3) In this section: de facto relationship has the same meaning as in the  HYPERLINK "http://www.legislation.nsw.gov.au/summarize/inforce/s/1/?xref=RecordType%3DACTTOC%20AND%20Year%3D1984%20AND%20Actno%3D147&nohits=y" \t "main" Property (Relationships) Act 1984. spouse of a person means: (a)the husband or wife of a person, or (b)the other party to a de facto relationship with a person. step-child or step-grandchild of a person means: (a)a child or grandchild of the spouse or former spouse of the person, or (b)a step-child or step-grandchild of the spouse or former spouse of the person (being a child or grandchild of the spouses former spouse). (4) A reference in this section to a child, step-child, grandchild, step-grandchild, parent, step-parent, grandparent, step-grandparent, brother, sister, step-brother or step-sister of a person or of a spouse or former spouse of a person: (a)includes a reference to persons whose relationship arises because of adoption, guardianship or fostering or because of the allocation of parental responsibility under a law of the Commonwealth or this State, and (b)includes a reference to persons whose relationship arises because of the birth of a child whose parents are not married to each other and are not parties to a de facto relationship with each other, and (c)in relation a reference to a brother or sister, includes a reference to a half-brother or half-sister. ANNEXURE B ENQUIRIES AND COMPLAINTS RECEIVED BY THE BOARD ON THE GROUND OF RESPONSIBILITIES AS A CARER FINANCIAL YEARENQUIRIES COMPLAINTS2001-200287167 Male Female 13 52 2002-200376588 Male Female 22 66 2003-200453543 Male Female 12 30 2004-200557939 Male Female 9 30  NB: In the years 2001/2002 and 2003/2004, the total number of complaints includes those identified as lodged by other ie neither male nor female complainants. These may include community organisations, unions, etc. ANNEXURE C ANTI-DISCRIMINATION AWARD PROVISION NSW 1. It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 (NSW), to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity and age. 2. It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect. 3. Under the Anti-Discrimination Act, 1977 (NSW) it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment. 4. Nothing in this clause is to be taken to affect: (a) any conduct or act which is specifically exempted from anti-discrimination legislation, (b) offering or providing junior rates of pay to persons under 21 years of age, (c) any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977 (NSW), (d) a party to this award from pursuing matters of unlawful discrimination in any state or federal jurisdiction. This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause. NOTES (a) Employers and employees may also be subject to Commonwealth anti-discrimination legislation. (b) Section 56(d) of the Anti-Discrimination Act, 1977 (NSW) provides: Nothing in this Act affects... any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.  Second Reading speech, Legislative Council 8 May 2000.  As above  The defence is only relevant with respect to the offer and termination of employment s49V(4)  From a high of 871 in the first full year of operation of the new ground to 579 in the financial year just ended.  Down from 88 in 2002/2003 to 39 in 2004/2005  In the year 2003/2004 the Board modified the method of counting complaints. Each complaint is now counted as a single complaint regardless of the number of grounds involved, whereas previously, each ground was counted as a separate complaint. The loss of some of the Boards staff and resources may have been another factor as some of our services were reduced to accommodate the loss.  Gardiner v NSW Workcover Authority [2003] NSWADT 184; Gardiner v WorkCover Authority of NSW (EOD) [2004] NSWADTAP 1  Reddy v International Cargo Express [2004] NSWADT 218  At the time of writing this submission, it is not clear what effect the Federal Governments proposed industrial reforms may have. It does seem clear, however, that any Family Provisions clause will not be one of the allowable and protected award conditions.  See for example s 3(f).  See for example s 167(2) and s 169(4).  See for example s 19(3)(e) in relation to awards, s 35(1)(a) in relation to the approval of enterprise agreements.  s 3(j).  See for example s 143(1C) (f) in relation to awards and s 170LU (5) in relation to certified agreements.  The Dictionary defines an industrial dispute to mean a dispute about an industrial matter. Section 6(2)(c) provides as an example of an industrial matter the conditions of employment in any industry (including hours of employment, .). and s 6(2) (f) provides as an example of an industrial matter discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act applies.  See however s 47 of the DDA and s 40 of the SDA which refers to such a defence at the federal level.  Federated Municipal and Shire Council Employees Union of Australia, NSW Division v Nambucca Shire Council 26 August 1998 Cambridge C.     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