UNE Carers' Responsibilities Discrimination Guidelines 2001
The following has been adapted from information provided by the NSW Anti-Discrimination Board. Further information is available on the Anti-Discrimination Board web site at: http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_carers_responsibilities
Contents
Introduction
From March 2001 carers’ responsibilities became a new ground of discrimination under the New South Wales Anti-Discrimination Act. The amendment defined ‘responsibilities as a carer’ as a person’s responsibility to care for or support a dependent child or immediate family member who is in need of care and support. Immediate family members 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. Spouse includes same-sex partners. A complete list of the people an employee cares for or supports who are included in this law is also available from the link above.
It is good people management practice to accommodate employees with carers’ responsibilities and the amendment asks employers to explore all options to do so.
Research indicates that having flexible work practices is one of the primary indicators of what makes a good and productive workplace. Employees who are provided with flexible work arrangements stay with an employer longer, and are more likely to put in extra effort. It costs more in staff turnover, lowered morale, and lowered productivity not to promote flexible arrangements.
The profile of the Australian workforce has changed dramatically over the past 20 or 30 years and will continue to change.
•Seven out of ten women in the 15-44 age group are now in the workforce.
•Women are returning to work soon after the birth of their children.
•The population is ageing and many workers care for older family members. In 1998 those aged over 55 made up 21% of the population, by 2016 this is likely to reach 29%. Many workers care for people with disabilities (some 13% in 1998).
•Fewer than 20% of families fit the nuclear family stereotype. There are many more sole parent families, same sex partner families and families/households that include other relatives.
•In many two parent families, both parents work (91% in 1998).
Direct & Indirect Discrimination
Direct discrimination means treating an employee or potential employee who has carer’s responsibilities unfairly or differently, or denying a position because of those responsibilities.
Indirect discrimination means enforcing written or unwritten work rules or requirements for all when doing this disadvantages many more people with carers’ responsibilities than people who don’t have carers’ responsibilities, and it can be shown that such enforcement is ‘not reasonable in all the circumstances’.
It is not direct discrimination to refuse a job to someone whose carer’s responsibilities mean that they can’t do the inherent requirements (the essential part) of the job, but employers must not make assumptions about this.
The Anti-Discrimination Board provides the following as an example of direct discrimination: An employee asks for three months unpaid leave to care for their sick mother. The request is refused. Yet, had the employee asked for three months unpaid leave to travel around the world and/or study, it would have been granted. The fact that three months unpaid leave is given to employees in other circumstances means that the employee is being treated differently because of their carer’s responsibilities.
Indirect discrimination can occur when everyone is treated the same way and this disadvantages people with carers’ responsibilities, when there is no need for this to happen. Claims are likely to involve the way in which work is organised and how this might negatively impact on or disadvantage people with carers’ responsibilities, for example, shift length, start, finish and break times, part-time versus full-time work, whether work can be done from home.
An example provided by the Board is as follows: Roster arrangements are changed to an earlier start time for everyone. This means that some employees are now unable to get to work on time because they have to wait until the child care centre opens before they can drop off their child. If there are ways of accommodating different start times for everyone, or at least for those who need it because of their carers’ responsibilities, then it would be indirect carers’ responsibilities discrimination not to make this accommodation.
This does not mean that people can work less hours and still be paid for full-time work. It means that the employer is willing to explore all possible avenues to enable an employee to negotiate work and family.
Supervisor's Responsibilities
The new law asks employers to do what they are able to do to accommodate their employee’s carer’s responsibilities. The onus is on employers, and therefore on all supervisors, to check whether rules and practices, either written or unwritten, might result in direct or indirect discrimination.
Supervisors must be prepared to explore all options. Things do not necessarily have to be done in the same way they have always been done. Work arrangements need to be as flexible as possible and supervisors need to consider whatever extra or special arrangements a job applicant or existing employee with carer’s responsibilities needs in order to manage these responsibilities alongside their work. There are no set rules about what sorts of extra or special arrangements may need to be provided, but the onus is on the supervisor to think ‘outside the square’ and to be willing to negotiate. Ask the employee how they believe they can best manage their caring responsibilities alongside their work. Make it clear that you are keen to sort out arrangements and don’t give the impression that you are trying not to employ or to get rid of the person concerned.
There are times when employers can legitimately claim that no arrangements can be provided, or that such arrangements would mean the employee could not do the inherent requirements of the job. For example, some jobs absolutely can’t be done from home, such as front of house receptionist duties, cashiering or courier deliveries. However, if only a small percentage of the job requires such duties, alternative working arrangements need to be considered. Before a decision that a particular arrangement will cause unjustifiable hardship, all the circumstances should be taken into account, including the benefit to the employee and the workplace generally should special arrangements be provided, as well as how it will affect the employee, the person they care for or support, and other workers, clients and customers if special arrangements are not provided.
Make sure that any request for flexible and special arrangements is given proper and full consideration, in line with legislation and University policies. If a request for part-time work cannot be provided, the supervisor needs to be able to show that an objective analysis for the decision has been made, and that alternative solutions have been seriously sought.
Some examples of extra or special arrangements:
•allowing an employee to work from home some or all of the time (this may also mean paying for and providing equipment and facilities);
•changing start or finish times, roster or break times;
•allowing part-time and job share instead of full-time work;
•giving people adequate notice about occasional changes to their regular hours;
•being flexible with the amount of unpaid or paid leave an employee can take and when they can take it.
Flexible practices for all employees reduce the risk of employees who don’t have carers’ responsibilities at the moment complaining that they are being made to carry the burden of their colleagues’ carers’ responsibilities, and prevents claims under other parts of anti-discrimination law.
A supervisor may be concerned about how they will be able to monitor the performance of an employee working flexible hours or from home. It is best to measure actual outcomes achieved by employees with a set of clear performance standards and a clear means of assessment. These should preferably be similar to, and certainly no more onerous than those applied if the employee works from the office or work site. If an employee fails to meet the required standards, they should be counselled in exactly the same way, that is, no more and no less severely than they would had they failed to meet the standards while working from the office or work site.
Harassment
Harassment on the ground of carers’ responsibilities may take the form of abuse or jokes that target carers or the types of people they might be caring for; or ignoring, isolating or segregating a person or group of people because of their carers’ responsibilities.
A Case Study
A case heard by WA Equal Opportunity Tribunal – January, 2000
Mrs Bogle was a charge nurse in a supervisory position at a dental clinic. She had adopted a child and wanted to work part-time when she came back from adoption leave. The employer refused her request, saying she had to either work full-time in her charge position or work part-time in a lower position.
The Tribunal decided that Mrs Bogle had been discriminated against on the grounds of sex, marital status and family responsibilities. The Tribunal found that the employer had not properly considered the advantages of job sharing and had focussed only on the disadvantages.
It held that the employer’s initial response was a ‘knee jerk reaction’ based on a feeling about the position and the fact that it had always been held by someone in a full-time capacity. The Tribunal found that the reasons advanced by the employer in rejecting the proposal for a job share were vague, ill-considered, superficial and had no objective basis.
It ordered that Mrs Bogle should get her charge nurse position back on a job share basis and she was awarded damages of $12,604.
Further Information
For the full legislation go to:
Anti-Discrimination Act (NSW) 1997 which incorporates the
Anti-Discrimination (Carers' Responsibilities) Act 2000 (NSW) amendment.
For more information, contact:
Employment Equity & Diversity, ext 3591 or email equity@une.edu.au