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Carer's Responsibility INFORMATION PAPER
INTRODUCTION The Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000 creates an obligation on employers to accommodate, where possible, an employee's responsibilities as a carer. Genuine consideration should be given to employees' requests to accommodate responsibilities as a carer or provide the "care or support" to another person. The legislation amends the Anti-Discrimination Act 1977 ('the ADA'), to prohibit direct or indirect discrimination in employment because of an employee's responsibilities as a carer. The Anti-Discrimination Amendment (Carer's Responsibilities) Act 2000 ('the Act') was introduced in response to a review of the ADA by the NSW Parliament.
The amendment received assent on 5 June 2000, and commenced on 1 March 2001. Recently significant case law has developed around this topic particularly in the areas of sex, disability and family responsibilities discrimination. The Act covers a diverse assortment of carer relationships. These include children - (including step children), parents (including step parents), present and former spouses' parents, grandparents, same sex and heterosexual spouses - former and present, siblings (including step siblings), and grandchildren (including step grand children). It is interesting to note that under s49S of the Act a child or stepchild includes both those below or above the age of 18 years old.
Furthermore, clause 26.0 of the UNSW (Academic Staff) Enterprise Agreement 2003 states that the University is committed to providing a workplace which is family friendly by recognising issues affecting academics with family responsibilities. In addition, clause 21.0 of the UNSW (General Staff) Enterprise Agreement 2003 states that employees may be able to access flexible work arrangements such as flexitime, job share and part time or fractional work arrangements. The Act prohibits employers from making employment decisions in recruitment and selection, the terms on which employment is offered, training and promotion opportunities, conditions and benefits of employment, etc. which directly or indirectly discriminate against those employees who have carer responsibilities.
Indirect discrimination refers to situations where policies and practices that on the surface appear neutral and fair to all have the effect of disadvantaging such employees disparately and are not reasonable in all the circumstances. Examples may include such things as early morning meetings, off-site training on the weekend or changes to work hours that impact on family arrangements such as collecting children.
Section 49V of the ADA, imposes an obligation on an employer to accommodate the needs of persons with carer responsibilities, unless such an arrangement imposes an unjustifiable hardship on the workplace. In addition to this exemption, an employer will not be taken to have breached the ADA if it has not employed, or if it has terminated the employment of, a person because she/he is unable to perform the inherent requirements of the position because of their carer responsibilities. Whilst this principle has been established, it is a very dynamic area of law where consistent principles are often difficult to define. The onus is on the employer to show unequivocally that the job could not be adequately performed.
Inherent Requirements The inherent requirements of a position are, as the term would suggest, the essential duties and responsibilities that must be performed. Courts have found that an inherent requirement of a job, is a requirement which is "fundamental, intrinsic or essential to that position"[Qantas Airways Limited v Christie (1998) 43 AILR]. Furthermore, the High Court has made the following observation on the notion of inherent requirements of the job:
The High Court observation above is the main principle behind the amendments to the ADA. Whilst it may impose some difficulties, a flexible work arrangement should be accommodated when addressing the needs of the employee but only in so far as they are still able to fundamentally perform the work or fulfil the tasks they were employed to do. It should be noted that it is not necessary to unconditionally adopt the employee's request for changed work arrangements to accommodate carer's responsibilities. It may be possible to negotiate compromises that are suitable to all parties. Unjustifiable Hardship Section 49U of the Anti-Discrimination Amendment Act states:
The issue of unjustifiable hardship is less clear in case law. Section s49U of the Anti-Discrimination Amendment Act is drafted in virtually the same terms as the section of the ADA relating to unjustifiable hardship in disability discrimination. An understanding of the threshold in terms of accommodation being justifiable or otherwise was recently gained in the case of Scott and Bernadette Finney v The Hills Grammar School [1999] HREOCA 14. The School in this case was found to have discriminated against the Finneys when it refused to accept their daughter (who has Spina Bifida) as a student. The school's evidence that to have accepted the student would have caused it considerable financial burden from having to adapt the entire school to accommodate her disability was not considered to be an unjustifiable hardship. The Human Rights Commission found that although difficult, the changes the school would need to make could not be called "unjustifiable hardship". The Federal Court of Australia supported this ruling on appeal. The Finney case demonstrates two things with regards to unjustifiable hardship. Firstly that the onus of proving unjustifiable hardship is on the respondent [as per Scott & Anor v Telstra Corp (1995) EOC]. Secondly, unjustifiable hardship is in itself a difficult matter to rely on as a defence, as the test is higher than may at first appear.
A defence of unjustifiable hardship would be difficult in most cases to succeed at an organisation as large as UNSW. The measurement of this test will go to the whole organisation not to the work unit in question.
Whilst accommodation of employee's requests in their entirety are ideal, they are not always possible in meeting the needs of the work unit and meeting work requirements. It should be noted however, that it is not necessary to unconditionally adopt the employee's requests for changed work arrangements. It may be possible to negotiate compromises that meet both the needs of the employee concerned and the work unit. Case 1 Refusal to allow work to be done from home State of Victoria v Schou [2004] VSCA 71 In this matter a parliamentary sub-editor approached her employer with a request to work part time in order to address her competing needs as a parent and carer of an unwell child. In her position as sub-editor, she was required to attend work full time on site when Parliament was sitting. The management of the department and the editor came to an agreement that her competing responsibilities could be addressed through the installation of a modem and a fax machine, thereby allowing the continuation of the employee's full time workload, with some of the work being performed from home on non sitting days. The agreement was not implemented and eventually the employee resigned. The Victorian Civil and Administrative Tribunal found that failure to put in place the 'accommodation' was, given the department's knowledge of the pressures faced by the editor as a parent and carer, tantamount to forcing the editor to choose between responsibilities as a carer and responsibilities as an employee. The Tribunal upheld Ms Schou's claim that by requiring her to attended work full time on parliament sitting days, her employer had indirectly discriminated against her by reason of her status as a parent and carer. The tribunal ordered that Ms Schou be paid $161,307 in compensation. However, this decision was appealed in the Supreme Court in 2001 and the matter was referred back to the tribunal in May 2002 with a direction that specific consideration be given to whether the on site attendance requirement was reasonable for the sub-editors as a group. In May 2002 the Tribunal upheld Ms Schou's complaint. Justice Duggan found that the requirement to work full time from Parliament House was an unreasonable requirement or condition with which Ms Schou could not comply because of her status as a parent and carer. The State of Victoria again appealed the decision and in April 2004, the Supreme Court of Victoria's Court of Appeal set aside the orders made by the Tribunal and dismissed the discrimination complaint. The Court of Appeal found that Ms Schou was, for a period of time, unable to comply with the requirements that she attend full time on sitting days because of her responsibilities as a parent. It held that what was at issue was the reasonableness of the requirement that Ms Schou attend full time on sitting days and that for it to be of relevance, any alternative must be as suited to the task as the requirement itself. The Court found that while the requirement that Ms Schou attend full time on sitting days was appropriate to the needs of the employer and the task which she was required to perform, the modem proposal was not as well suited. Therefore, the Court concluded that although Ms Schou as a parent and carer of an ill child could not comply with the requirement that she attend full time on sitting days, as the requirement itself was reasonable, the imposition of this requirement did not constitute indirect discrimination against Ms Schou.
It is important to note that while Ms Schou was ultimately unsuccessful in her claim, her work circumstances were unique. With the increase of working from home and the development of the virtual office, the University may be faced with cases where alternatives such as working from home are, in fact, well suited to the requirements of the job. It should also be noted that the Court of Appeal's decision was not unanimous, with Justice Callaway giving a dissenting judgment in favour of Ms Schou. See Also: Industrial Case Summaries 05/01 - State of Victoria v Schou [2004] VSCA 71 Case 2 Failure to provide part time work after Maternity Leave discriminatory. In a further case a Charge Nurse returning to work after maternity leave requested to do so part time. The request was denied the by the employer. The employee argued that she had been indirectly discriminated against on the grounds of her sex, family responsibilities and parental status and marital status.
Again the tribunal observed that the indirect discrimination question arose because the requirement to carry out the job full time was one which a substantially higher proportion of persons not in that category such as men, people without family responsibilities and unmarried people could meet and the employee could not. The tribunal examined whether the job could in fact be carried out without the discriminatory requirement and found that it could. It held that the employer failed to consider the feasibility of part time work. In addition the tribunal held that the requirement to work full time was a "knee jerk" reaction based on the simple premise that the position of charge nurse had always been a full time position. [Bogle v Metropolitan Health Service Board (2000), see also Hickie v Hunt and Hunt].
Case 3 Refusal to allow flexibility in timing of meal breaks discriminatory An employee was disciplined, and had her employment status changed from full to part-time without her consent, following her attempt to formalise an existing workplace arrangement. This arrangement involved the employee taking two breaks from work - one lunch break and a 15 minute break in the afternoon in order to collect her child from kindergarten and place him in another care facility. The Court found that the company had discriminated against the employee on the basis of her family responsibilities by insisting that she take her lunch break between 12-1pm, thereby treating her less favourably than other employees without family responsibilities. The Court also found that the forced change from full to part-time employment constituted unlawful dismissal on the basis of family responsibilities. The Court ordered reinstatement of the employee to her full-time position, together with damages in excess of $10,000. Importantly it also imposed a variation to her employment agreement to provide for her lunch break to commence at 2.55 pm to accommodate her family responsibilities. Although the employer stated that flexible working arrangements could be negotiated with employees, the Federal Magistrates Court of Australia ('the Court') found that the employer had not made sufficient effort to understand the proposal and had not tried to adequately accommodate the employee's needs. [Song v Ainsworth Game Technology (2002) FMCA 31]. OTHER RESOURCES
Some avenues of possible assistance and support:
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AUTHORISED BY Director, Human Resources Page last updated: Monday, July 31st, 2006 |
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