ࡱ> ?A>` Y#bjbj .2Yz z z z   LNNNNNN$h;rX XXr $dddX  LdXLddd Mz Rd ,<d,"dd d0 |  rrN XXXXz z  Submission to HREOC for Striking the Balance 30-09-2005 K Lee Adams Lecturer, School of Law Deakin University Government policies as well as demographic and social forces pushing workers with unpaid caring responsibilities (worker-carers) into the paid labour market suggest that more people in the future will experience the pressures of dual roles of working and caring. Yet, according to the OECD, the Australian government has offered comparatively few pro-active measures to create family-friendly work practices, which likely results in their patchy, even low availability (2002:16-17). The Government has a responsibility to acknowledge that its own policies shape the current situation and it must take steps towards more progressive policies. As Rosemary Hunter (1992:5) has said, institutionalised or structural discrimination can exist where organisational norms, rules and procedures . . . have generally been designed, whether deliberately or unreflectively, around the behaviour patterns and attributes of the historically dominant group in public life. The workplace in the twentieth century was structured around the ideal worker as a norm. Thus, workers with family responsibilities face structural discrimination where work standards are structured around the ideal worker, which worker-carers are unable due to their caring responsibilities to fulfil. To break free of this stereotype which leads to unreasonable expectations on workers to be perpetually work-primary, we must re-create workplace and societal structures to accommodate caring obligations. These new structures can include changes to the tax and benefit system, workplace-based childcare, outside school hours care, respite care, state-provided school or elder-care transportation and lunch programs, as well as work-based initiatives and equality legislation. Importantly, it is easy to see the link between worker-carers and the households in which they live and work. However most ideal workers are also connected to households as their work-primary breadwinner. Thus, whether policies are aimed at ideal workers or worker-carers, policy-makers must consider the intimate link between workers and households. To permit broader protections for worker-carers in the workplace and to provide an avenue for individual challenge of disadvantaging structures, the Sex Discrimination Act 1984 (Cth) (SDA) must be amended to remove the current limitations on the ground of family responsibilities and permit claims for indirect discrimination and claims which include all forms of workplace disadvantage, not just termination. In theory, indirect discrimination claims permit individual challenge to structural workplace practices or policies such as a requirement of full-time hours or a lack of flexible working times or methods which can adversely impact workers with caring obligations. Failure to make these changes to the SDA means, for example, that under federal law an employer may refuse to hire a job applicant because she has family responsibilities and that a male worker with family responsibilities is denied legal protections which may be afforded to women in identical situations, simply by virtue of the traditional division of labour. This is not the picture Australians have of allowing everyone a fair go. A re-imagining of the employment relationship and the roles of employers and employees is required in order to move forward. The notion that management prerogative may solely dictate terms and conditions of work is outmoded and ineffective. Conceiving of employers and workers engaged in a cooperative effort is popular in political discourse, yet the logical consequences for management and legal regulation have yet to be acknowledged. We must not presume that the parties to such a cooperative effort are currently equal in the support of the law. If relations between workers and management are cooperative, cooperation should not run in only one direction. Workers should be empowered to have input into their own working time, work structures, and working conditionsareas that are typically seen as within the realm of management prerogative. Where a worker can reasonably restructure a job to permit meeting family responsibilities and still accomplish the task (as opposed to accomplishing the task in the way the employer would prefer), accommodating the worker should be required. 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; Thorton, 1990). Perhaps legislation specifically directed at reasonable accommodationenabling workers with family responsibilities to craft workable employment solutions for their situationswould provide greater scope than anti-discrimination legislation alone, which is unsuited to wide-scale restructure of work relationships. We must also acknowledge that labour force participation is no longer static and stable over time for any workers. Dynamic change can occur where workers have family responsibilities. Worker-carers may be moving in and out of the labour force, engaging in re-training after a period out of the labour force, and requiring periods of leave in order to manage family obligations. Barbara Pocock suggests that this dynamic state requires a life-cycle approach to work and care which would provide scope for intensive care without penalty over the life cycle (2003:243). Moreover, systemic change often comes about through bargaining by workers themselves. Though the frequently individualised needs of worker-carers may require individual scope and rights to achieve greater work-life accommodation, some creative remedies can come out of the industrial jurisdiction. (See CPSU v CSL Ltd). The potential flexibility of industrial remedies suggests that the Federal Governments proposed drastic reduction in the industrial jurisdiction (including removal of unfair dismissal protections for thousands of workers and reduced scope of awards) bodes ill for workers with family responsibilities. In sum, what is required to help workers with family responsibilities is a recognition at all levels that, as Sandra Berns argues, participation in care work and household labour should be considered essential rather than contingent, . . . a human given rather than a particular and individual choice (2002:44). References Berns, S (2002) Women Going Backwards: Law and Change in a Family Unfriendly Society. Community and Public Sector Union (CPSU) v CSL Ltd [2002] AIRC, PR921278 (June 3, 2002). Hunter, R (1992) Indirect Discrimination in the Workplace. OECD (2002), Babies and Bosses: Reconciling Work and Family Life, (vol 1 Australia, Denmark and the Netherlands). Pocock, B (2003) The Work/Life Collision. Thornton, M (1990) The Liberal Promise: Anti-Discrimination Legislation in Australia. 9:r  p [\ /3yGJ`fkmpqPWXZdh~8rļܱļܭ࡝hG`h&ohhPDh#hp hWahYh^h^6h^h^h]6h^h\6h\h]h@hnohh9 PhYhbhnMh*>89:F^pqr abkl ! _! gd\ gd\ gdY gdbgd\Y#1;AJjy{|mabd*.5>B[f$;EjkA! * ^!_!`!d!e!p!д̰hnMhnM>*'>% <h\6hbzh<h\hZ7.h4chgnh#hMh\6h\h#h.PhG`h@hB_!`!a!b!c!d!e!p!q!!!""#"^"_"""""U#V#W#X# gd\ gd4c gdO>gd' gd'gdO> gdYp!q!!!!!!!!!#"4"\"^"_"l"""""""""#S#U#V#W#X#Y#ƾhPDhG`h\hZ7.hv\ h4c6h4chThY6hYhvhO>6 hO>6h hO>6hO> h'6hbh'6hTh'6h'hnMX#Y#FEƀKgd&o,1h. 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